IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2121 of 2015 --- Bibhuti Mandal, son of Anant Ram Mandal, Block Development Officer, Presently posted at Devipur Block, P.O. and P. S. Devipur, District – Deoghar, Jharkhand … … Petitioner Versus 1. The State of Jharkhand 2. Mahmood Ansari, son of Gulmohammad Mian, Resident of Village Jeruwa, P.O. + P. S. - Narayanpur, Subdivision and District - Jamtara … ... Opposite Parties --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. P. P. N. Roy, Sr. Advocate For the State : Mr. Mukesh Kumar, A.P.P. For the O. P. No. 2 : Mr. Zia-Ul-Haque, Advocate --- 07/08.09.2016 Heard Mr. P. P. N. Roy, learned senior counsel appearing for the petitioner and Mr. Mukesh Kumar, learned A.P.P. for the State assisted by Mr. Zia-Ul-Haque, learned counsel appearing for the opposite party no.
2. In this application the petitioner has prayed for quashing of the order dated 26.06.2015 in connection with P. C. R. Case No. 400 of 2012 by which cognizance has been taken for the offences punishable under Sections 420, 468, 471, 120(B) of the Indian Penal Code. It appears that initially a complaint case was instituted by the opposite party no. 2 which was referred to the police under Section 156(3) Cr.P.C. leading to institution of Narayanpur P. S. Case No. 08 of 2013. After investigation the police had submitted final form and on being noticed the opposite party no. 2 had filed a protest petition which was treated as a complaint petition and after conducting an enquiry under Section 202 of the Cr.P.C. cognizance was taken for the offences punishable under Sections 420, 468, 471 and 120(B) of the Indian Penal Code. Mr. P. P. N. Roy, learned senior counsel appearing for the petitioner, has submitted that the impugned order dated 26.06.2015 is bad in the eye of law in view of the fact that after conducting an enquiry under Section 202 of the Cr.P.C. on the protest-cum-complaint petition preferred by the opposite party no. 2, the learned S.D.J.M., -2- Jamtara could have passed an order based on the said enquiry instead of taking into consideration the case diary as well while finding a prima facie case against the petitioners. It has been submitted that the learned Magistrate could have taken cognizance while differing with the final form or could have taken cognizance based on the enquiry conducted by him under Section 202 of the Cr.P.C. but he had adopted a third method by which in the complaint petition itself he has taken help from the case diary while taking cognizance and summoning the petitioner to face trial. Learned senior counsel in support of his contention, has referred to a judgment in the case of Ramkumar Pandey Vs. State of Bihar reported in 1979 BBCJ293 Mr. Zia-Ul-Haque, learned counsel appearing for the opposite party no. 2, has submitted that the allegations made against the petitioner do constitute an offence of cheating and forgery and in fact the report of the Officer In-charge of Narayanpur Police Station do substantiate the offence committed by the petitioner. It has been submitted that the learned Magistrate has not committed any error while taking cognizance vide order dated 26.06.2015. As has been pointed out by the learned senior counsel for the petitioner there appears to be a basic flaw in the impugned order dated 26.06.2015 as the learned Magistrate after conducting an enquiry has taken resort to the case diary as well before coming to a conclusion that sufficient material exists against the petitioner so as to prosecute him. The learned Magistrate on submission of the final form could have considered the materials available in the case diary and if indeed there were sufficient materials against the petitioner he could have differed with the final form by giving sufficient reasons and thereafter taken cognizance. The second option which was available to the Magistrate on submission of the final form was to have given notice to the informant and if a protest petition is filed to treat the protest petition as a complaint petition conduct an enquiry under Section 202 of the Cr.P.C. and thereafter, may either take cognizance or dismiss the complaint under Section 203 of the Cr.P.C. The Magistrate although had given a notice to the complainant and treated the protest petition -3- as a complaint petition and had also conducted an enquiry under Section 202 of the Cr.P.C. but subsequently prior to taking cognizance has taken the help of the case diary which contain the report of the enquiry conducted by the Officer In-charge while opining that sufficient material exists against the petitioner. The process which has been adopted by the learned Magistrate while taking cognizance is unknown to law. In the case of Ramkumar Pandey Vs. State of Bihar (Supra) in a similar situation it was held that it is not permissible to peruse the statement of the witnesses recorded during the investigation either for the purposes of dismissing the petition of the complainant under Section 203 of the Cr.P.C. or for the purposes of summoning the accused persons under Section 204 Cr.P.C. It further went on to hold that the statement of witnesses examined during earlier investigation cannot be looked into for the purposes of summoning the accused. In view of the Division Bench judgment as referred to above, the impugned order dated 26.06.2015 being an order passed by the learned Magistrate who has acted beyond his jurisdiction, the same is, hereby, quashed and set aside and the matter is remanded back to the learned Magistrate to pass a fresh order in accordance with law only on the basis of the enquiry which has been conducted by him under Section 202 of the Cr.P.C. without taking resort to the case diary. This application stands allowed. At this juncture, it has been submitted by the learned senior counsel appearing for the petitioner that the petitioner has been summonsed as charge is going to be framed shortly and in view of the fact that the order taking cognizance dated 26.06.2015 has already been quashed and the matter has been remanded back to the learned Magistrate the subsequent orders by which the petitioner has been directed to appear for framing of charge becomes redundant. Pending I.A.(s), if any, also stands disposed of. (R. Mukhopadhyay, J.) Umesh/-