DEVENDRA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this application filed under Section 482 of the Code of Criminal Procedure, the petitioners have prayed for quashing the order dated 6.4..1998 passed by the Chief Judicial Magistrate, Chapra, whereby the Chief Judicial Magistrate refused to act in pursuance of the police report submitted before him under Section 173(8) of the Code of Criminal Procedure and directed for commitment of the case.

(2.) IT appears that a criminal case bearing Derani P.S. case No. 26 of 1992 under Sections 448, 323, 324, 302/34 I.P.C. was instituted on the basis of Fard -beyan of the informant, Nand Kishore Singh in which the informant alleged that on 22.6.1992, the petitioners came armed with Bhala, Pharsa and lathi at the residence of the informant and accused Shivjee Singh hurled Bhala on him which did not hit him but caused injury in the index finger of Indu Kumari. It is alleged that Indu Kumari was treated by a village Doctor who advised to take her to Sadar Hospital, but on way to the hospital, she died. On the basis of the Fard -beyan the police investigated into the matter and submitted charge sheet against the petitioners. The petitioners case is that the viscera report was subsequently received by the police revealed that the death of Indu Kumari was caused due to poisoning but in order to cover up their own crime the informant had falsely lodged the aforesaid case. The petitioners case is that subsequently when further evidence was found regarding innocence of the petitioners and involvement of the inform - ant and his associates in this offence, the Superintendent of Police submitted his memo and prayed to the Chief Judicial Magistrate not to proceed with the earlier charge sheet and further stated that the death was caused by poisoning. It appears that after investigation the police submitted final report against the petitioners. Since overwhelming materials were found about the complicity of murder, the police registered Derani P.S. case No. 25 of 1995 against the informant and his associates under Sections 328, 320/34 I.PC. for the murder of Indu Kumari. It is alleged by the petitioners that however, on the basis of the mala fide chargesheet, the learned Chief Judicial Magistrate took cognizance against the petitioners in routine manner and without application of mind and transferred the case to the court of the Judicial Magistrate, Chapra. The petitioners therefore, moved an application before the Chief Judicial Magistrate for acquittal but the learned Chief Judicial Magistrate refused the prayer of the petitioners by the impugned order. Hence this application.

(3.) THERE is no dispute with regard to the settled proposition of law that it is wholly within the jurisdiction of the Magistrate to pass appropriate order even after cognizance has been taken on the basis of the report submitted by the police after investigation. Further it is in the discretion of the Magistrate to pass appropriate order on the basis of the subsequent report submitted by the police under Section 173(8) of the Code. Here is is not a case where the Chief Judicial Magistrate refused to exercise power under Section 173 of the Code on the ground that the cognizance has already been taken rather from perusal of the impugned order it appears that the learned -Magistrate has considered the entire facts of the case and also the evidence came on the record during investigation. Learned court below took into consideration the fact that the allegations of assault on Indu Kumari and first aid given to her by the Doctor was substantiated by the seizure of the prescriptions by the police. Learned Magistrate also took into consideration the statement of the witnesses recorded under Section 161 of the Code to the effect that the deceased received injury on her person by means of Bhala and the said injury was substantiated by autopsy report available on the record. Learned Magistrate also took into notice of the supervision note of the Dy. S.P. Sonepur and the S.P. Saran where the involvement of the accused was found. The court below, therefore, on the basis of the materials on record came to the conclusion that both the cases filed by the informant Nand Kishore Singh and the case filed by the I.O. on his own Fard -beyan against the informant and his companion for the alleged murder of Indu Kumari should be put on trial together so that justice would be made available to the concerned party. In my opinion, therefore, the decisions cited by the learned counsel do not apply. In the facts and circumstances of the case, I do not find grave error of law in the impugned order passed by the court below inasmuch as the court below has exercised power under Section 173 of the Code and found that it is not a fit case where the petitioners should be exonerated at this stage.