- (1.) PETITIONER Ramswarup Pandit has invoked the inherent powers of this Court under Section 482 of the Code of Criminal Procedure praying for quashing of the order dated 26.8.2002 passed by the learned Chief Judicial Magistrate, Incharge, Giridih in G.R. No. 766 of 2002 arising out of Bengabad P.S. Case No. 55 of 2002 whereby the learned Court below has taken cognizance against the petitioner under Section 304 of the Indian Penal Code and also for quashing the order dated 27.8.2002 passed by Sri L. Dubey, Judicial Magistrate, 1st Class, Giridih whereby none - bailable warrant of arrest and process under Sections 82 and 83 of the Code of Criminal Procedure was simultaneously issued against the petitioner and further, for quashing of the entire subsequent proceeding in connection with the aforementioned case.
(2.) THE petitioner has challenged the aforesaid order on the ground that the order of cognizance as passed by the learned CJM was without application of judicial mind and in a mechanical manner and also against the procedure established by law. Learned counsel explains that the impugned order was passed while considering the bail application of one of the accused persons and without going through the contents of the case diary submitted by the investigating officer as the final report. Learned counsel further explains that the Investigating Officer had submitted final report in favour of the present petitioner in the aforesaid case after thorough investigation into the allegations made by the informant. The learned Court below without considering the fact that there was no evidence whatsoever in the entire case diary to suggest involvement of the petitioner in the alleged offence, had merely acted upon the protest petition filed by the informant that too, without recording the statements of the complainant and his witnesses. Learned counsel adds further that though the learned Magistrate was at liberty not to accept final report submitted by the Investigating Officer and to proceed with the protest petition treating it as a complaint considering the fact that the offences alleged was in the nature of offences under Section 304 -B, IPC is triable by the Court of Sessions it was incumbent upon the learned Magistrate to record the statement of the complainant and the evidences of the complainant 'switnesses before taking cognizance of the offences. Learned counsel explains further that the learned Court below has acted merely on the fact that a protest petition was filed by the informant, although the same informant in his statement before the Investigating Officer, had not made any incriminating statement against the petitioner at all. Learned counsel adds that though the informant had filed his protest petition but subsequently, the same informant had declared before the Court below that he has no grievance against the petitioner, since he was satisfied that the petitioner had no involvement in the alleged offence committed against the informant 'sson. Mr. Rajesh Kumar Mahtha, learned counsel for the complainant -opposite party No. 2 has affirmed that the complainant had though filed a protest petition before the Court below, but the same informant had also filed a declaration before the Court below that he had no grievance whatsoever against the present petitioner.
(3.) BEFORE proceeding further, a short account of the events relevant for the disposal of this application may be indicated. One Manbharan Mandal (Complainant O.P. No. 2) lodged an FIR on 11.5.2002 on Bengabad police station alleging inter alia that on 8.5.2002 a marriage party had visited the house of one Ruplal Mandal. Some unknown persons had stolen wrist watch of one Basant Mandal. Suspicion was caste upon the informant 'sminor son aged 12 years old Karu Mandal by the said Basant Mandal and his father. On the next day, the minor boy was taken away by Basant Mandal and his father to their house where he was assaulted by them fists and slaps. It is alleged that the petitioner Ramswarup Mandal was also one of the assailants. As a result of assault, the minor boy was rendered unconscious and promptly taken to the hospital, but on the next day on 10.5.2002, the succumbed to his injuries. Some witnesses named in the FIR are claimed to have seen the assault. It is further alleged that the present petitioner and the co - accused Murli Mandal had threatened the informant at the hospital prohibiting him from mentioning their names before the police. It may be noted that earlier, on 10.5.2002, statements of the informant were recorded by ASI of Police, Giridih Town Police at the Sadar Hospital, Giridih as his fardbeyan wherein he had stated that his son Karu Mandal had left home after having his lunch at about that his son is lying unconscious in the field. The informant and his wife and another son Rajesh went to the field where they found the minor boy unconscious. He was promptly taken to the clinic of Dr. B.B. Singh at Bengabad who advised them to take the minor boy to Sadar Hospital and accordingly the boy was admitted to the Sadar Hospital, Giridih and in course of treatment, the boy died on 10.5.2002. The informant had stated that he did not know the cause of death of the minor boy. The said fardbeyan was forwarded by the police officer to the officer -in -charge of Bengabad police station for necessary action. The dead body of the deceased was forwarded for postmortem examination and it was opined by the doctor who had conducted the autopsy that the suspected cause of death was due to poisoning land also due to injury found on the person of the deceased. After concluding the investigation, the Investigating Officer submitted final form on 13.8.2002 with the observation that the evidences disclosed offence under Section 309, IPC against the deceased Karu Mandal. Later on, the informant filed a protest petition before the learned CJM, Giridih on 17.8.2002 and the same was kept on record. On 26.8.2002, learned CJM while considering prayer for bail on behalf of the co -accused Murli Mandal proceeded to take cognizance of the offence under Section 304, IPC against the petitioner and the said co -accused Murli Mandal by the said order. It appears from the impugned order dated 26.8.2002 that the learned CJM had considered that though the case was registered for the offence under Section 302, IPC, but after investigation, police had submitted final report and at the same time, the informant had also filed a protest petition making certain allegation against the accused persons including the present petitioner to the effect that the accused persons had forcibly taken the signature of the informant and had given a warning to him and his son and further that they have influenced the police to submit final report. The learned Magistrate has further recorded that it appeared to him that the witnesses had supported the statements contained in the FIR and thus, on being satisfied that a prima facie case was made out under Section 304, IPC, he had proceeded to take cognizance of the aforesaid offence and simultaneously transferred the case to the Court of Sri L. Dubey, Judicial Magistrate, First Class, Giridih for commitment. The main contention of the learned counsel for the petitioner is that after sub - mission of final report if any protest petition or complaint is filed in a case triable exclusively by the Court of Sessions, then before taking cognizance and issue process; the Magistrate must follow the procedure under Section 202, Cr PC by directing the complainant to procure all the prosecution witnesses.;