- (1.) THE interlocutory application, bearing no.1273 of 2012 has been filed on behalf of the opposite party no.2 wherein prayer has been made to vacate the order dated 27.9.2010 passed by this Court whereby further proceeding of R.C.case no.1(S)/07/CBI/SCB/LKN has been stayed so far this petitioner is concerned.
(2.) IT does appear that opposite party no.2 filed a complaint alleging therein that his son Manraj Tirkey, who was apprehended in connection with the case was subjected to third degree torture in course of investigation at the police station, as a result of which, he sustained injuries which eventually proved to be fatal. The matter was taken for investigation by the C.I.D. However, under order passed by this Court in a Public Interest Litigation, C.B.I was directed to take over the investigation. Accordingly, C.B.I registered the case as R.C.Case No. 1(S)/07/CBI/SCB/LKN . In course of investigation, C.B.I did not find any culpability on the part of this petitioner and hence, submitted final form exonerating the petitioner from the accusation whereas charge sheet was submitted against other accused persons. However, the court took cognizance of the offences under Sections 323, 343, 304 and 120(B) of the Indian Penal Code not only against the persons who were charge sheeted but also against this petitioner. That order was challenged by the petitioner in main application. At the time of admission of the main application it was pleaded on behalf of the petitioner that the cognizance is quite bad in view of the decision rendered in a case of Kishori Singh and others vs. State of Bihar and another [2003(3) East Cr.Cases 816 (SC)] = AIR 2000 SC 3725 wherein it has been held that the Magistrate has no jurisdiction to take cognizance of the offence which is triable by the court of sessions against a person who was not sent up for trial. However, it was pleaded on behalf of the opposite party no.2 that the judgment rendered in Kishori Singh's case can be said to be per incuriam as earlier three Judges' Bench of the Supreme Court in a case of Raghubansh Dubey vs. State of Bihar (AIR 1967 SC 1167) had held that the Magistrate has absolute power under Section 190 of the Code of Criminal Procedure to take cognizance of the offences even against the accused, who have not been recommended for trial, irrespective of the fact that the offences are sessions triable or not. The same principle was reiterated subsequently in a case of Ganga Dhar Janardhana Mahatre vs. State of Maharashtra [(2004) 7 SCC 768] and in a case of Chittaranjan Mirdha vs. Dulal Ghosh and another [(2009) 6 SCC 661].
(3.) HOWEVER, learned counsel appearing for the petitioner did point out it to the court that the issue which was decided in Raghubansh Dubey's case was not same as it was there in Kishori Singh's case and that the issue what was there in Kishori Singh's case again came up for consideration before a Bench of three Judges of the Apex Court in a case of Dharam Pal and others vs. State of Haryana and another [(2004) 13 SCC 9] wherein their Lordships having noticed conflicting views of the Supreme Court has referred the issue to be decided by a larger Bench. Taking into account all these aspects of the matter, the court did find it proper and appropriate that the final decision in the present case be kept in abeyance till it is resolved by the larger Bench of the Supreme Court and thereby this Court vide order dated 27.9.2010 stayed further proceeding of the case so far this petitioner is concerned. Now, interlocutory application has been filed for vacating the order of stay on the ground that during trial witnesses examined on behalf of the prosecution have stated about the culpability of this petitioner and as such, he can be summoned under Section 319 of the Code of Criminal Procedure to face trial. ;