Rakesh Ranjan Prasad, J. - (1.) HEARD learned counsel appearing for the petitioners and also learned counsel appearing for the State. This application is directed against the order dated 11.8.2011 passed by Chief Judicial Magistrate, Deoghar in Mohanpur P.S. case No. 61 of 2011 (G.R. No. 232 of 2011) whereby and whereunder cognizance of the offence punishable under Section 304B/34 of the Indian Penal Code has been taken against the petitioner.
(2.) LEARNED counsel appearing for the petitioner submits that a case was lodged as Mohanpur P.S. Case No. 61 of 2011 (G.R. No. 232 of 2011) with respect to commission of offence under Section 304B/34 of the Indian Penal Code against the husband, father -in -law, mother -in -law, Dewar, bhaisur and Gotni. The matter was taken up for investigation. During investigation, the police did find complicity of only the husband, father -in -law, mother -in -law and not against these petitioners, who happen to be Dewar, Gotni and Bhaisur and therefore, submitted charge sheet against them. So far these petitioners are concerned, the investigation was kept open. When the charge sheet was submitted, the court took cognizance of the offences against them and even committed the case to the court of sessions. Subsequently, the police submitted final form against these petitioners. The court on submission of the final form after differing with the conclusion arrived at by the police, took cognizance of the offence, vide order dated 11.8.2011 under Section 304B/34 of the Indian Penal Code against the petitioners also. In this regard it was further submitted that persons who were put on trial have now been acquitted as one of the prosecution witnesses did support the case of the prosecution and thereby it would never be in the interest of justice to refer back the matter to the court for passing a fresh order in terms of the order passed by the Hon'ble Supreme Court in a case of Dharam Pal vs. State of Haryana : (2013 (3) East. Cr. C3 (S.C.)) and thereby order taking cognizance is fit to be set aside.
(3.) IN the context of submission, notice needs to be taken of the case of Dharam Pal vs. State of Haryana (supra) facts of which are that the appellants Dharam Pal and others were made accused in a case along with Nafe Singh in a case triable by the court of sessions. The police after investigation submitted charge sheet against one of the accused, Nafe Singh whereas Dharam Pal and others were not sent up for trial whose names were included in column 2 of the police report, despite the fact that they too had been named as accused in the First Information Report. After going through the police report, the learned Judicial Magistrate, 1st class, Hansi summoned the appellant and three others, who had not been included in the charge sheet for the purpose of facing trial along with Nafe Singh. Thereupon the Magistrate in exercise of his power as contained in Section 190 of the Code took cognizance of the offence against them. That order was challenged before the revisional court. The revisional court dismissed the application. When the matter came up before the High Court, the High Court also dismissed the application. Thereafter Special Leave to Appeal was preferred before the Hon'ble Supreme Court. When the matter was initially taken up by the Hon'ble Supreme Court, it was placed before the Court that number of conflicting decisions are there or the point. On one hand in the case of Raj Kishore Prasad vs. State of Bihar and another : ((1996) 4 SCC 495) and also in a case of Kishore Singh and others vs. State of Bihar and others : ((2004) 13 SCC 11), it has been held that the Magistrate has no power to add any accused with the accused charge sheeted rather that power lies with the Sessions Judge exercising power under Section 319 of the Code of Criminal Procedure when the case comes to it upon its committed whereas in a case of SWIL Limited vs. State of Delhi and others : ((2001) 6 SCC 670) and also in a case of Rajinder Prasad vs. Bashir and others : ((2001) 8 SCC 522) it has been held that the Magistrate does have power to take cognizance in terms of the provision as contained in Section 193 of the Code of Criminal Procedure. In such situation, the matter was referred before the Constitutional Bench whereby following issues were framed for consideration. 1. Does the Committing Magistrate have any other role to play after committing the case to the Court of Sessions on finding from the police report that the case was triable by the Court of Sessions? 2. If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh to stand trial in connection with the case made out in the police report? 3. Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Sessions to stand trial or whether he was justified in issuing summons against them without following such procedure? 4. Can the Sessions judge issue summons under Section 193 of the Code of Criminal Procedure as a Court of original jurisdiction?;