S. Acharya, J.@mdashThis revision has been filed against the order dated 23-5-1975 passed in G.R. Case No. 437 of 1974 on the file of the Sub-Divisional Judicial Magistrate, Bolangir.
2. On the information lodged by Hareram Satpathy on 29-11-1974 regarding the murder of his brother Parsuram Satpathy Bolangir P.S. Case No. 281 of 1974 was registered, and the police started investigation into that case, and in respect - of that cas G.R. Case No. 437 of 1974 was registered in the Court of the Sui: divisional Judicial Magistrate, Bolangir while the said case was being investigated Sitaram Satpathy (opposite party No. 1 herein another brother of the deceased filed a complaint petition relating to the same murder and alleged therein that the police was no properly investigating into the case. The above mentioned F.I.R. was against accused persons, whereas the complaint petition was against 13 accused persons including the ten named in the F.I.R.. The complaint case was registered as I.C.C. No. 6/75 in the Court of the Sub-Divisional Judicial Magistrate, Bolangir. The Court after recording the initial deposition of the complainant on 1-2-1975 stayed all proceedings relating to the complaint case in accordance with the provision of Section 210(1), Code of Criminal Procedure 1973, as the matter relating to which the complaint petition was filed was being investigated by the police and in respect of the same matter G.R. Case No. 437 of 1974 had already been registered in his Court. The police after investigation of the said case, on 10-2-1975 submitted the charge sheet, under Sections 302 and 147, Indian Penal Code only against six persons. Of the six charge sheeted accused persons, four have been named in the F.I.R. and the names of the rest two, namely Prafulla Bhoi and Sugyan Sandha, do not appear in the F.I.R. All the charge-sheeted accused persons are of course included, amongst the 13 accused persons named in the complaint petition. Certain petitions were thereafter filed in the Court below on behalf of both the parties, and the Magistrate heard both the parties including the lawyer for the complainant in I.C.C. No. 6 of 1975, and decided by the impugned order, to enquire into the said complaint case u/s 202, Code of Criminal Procedure in respect of those accused persons who were not charge-sheeted by the police in the G.R. Case. This revision has been filed by Tikaram Agarwalla one of the accused persons whose name appears in the F.I.R. as well as in the complaint petition, but has nut been charge-sheeted by the police.
3. Mr. Palit, the learned Counsel for the Petitioner contends that in the above-mentioned enquiry the Magistrate cannot consider the allegations against any of the accused persons whose name appears in the F.I.R. According to Mr. Palit the said enquiry can proceed only in respect of accused persons not named in the F.I.R. and the charge-sheet but named in the complaint petition. In this connection Mr. Palit says that as the police organisation is legally entrusted with the duty of investigation, the Courts should give credence to the Investigation of a case does by the said agency, and should treat with confidence the result of investigation reported by that agency, and so if the police on investigation of a matter in respect of some accused persons finds that there is no prima facie evidence against them or some of them then the Court should not hold any enquiry or direct any investigation u/s 202, Code of Criminal Procedure in respect of chose accused persons. Mr. Palit says that an enquiry or investigation u/s 202, Code of Criminal Procedure at the instance of a private party would not only delay the disposal of the case, but would also cause humiliation and harassment to the accused persons named in the F.I.R. and the said enquiry should be stopped on the well accepted legal abhorrence towards double jeopardy.
4. There is no legal sanction behind the above mentioned submission of Mr. Palit. The legislature does not attach implicit credence and confidence to police investigation as is evidenced from the provisions, to mention only a few, of Section 162, proviso to Section 164(1) Section 167, Sections 227, 239, proviso to Section 302(1) and Section 25 and 26 of the Evidence Act. Moreover, the police for various obvious reasons cannot have the last say in such matter, only because the procedural law gives them the power to investigate into such matters. Section 319 specifiable provides that a Court can proceed against accused persons other than those reported against in a particular case. It is also well settled that a Magistrate taking cognizance of an offence as per Section 190(1)(b), Code of Criminal Procedure is not restricted in any manner to proceed only against the accused persons named in the police report filed u/s 173, Criminal Procedure Code. When cognizance is taken on police report, the Court takes cognizance of the offences constituted by the facts reported in the said police report. The Court takes cognizance of the offence and not of the offenders and once it takes cognizance at an offence, it is the duty of the Court to find out who the offenders really are, and once It comes to the conclusion that apart from the persons sent up by the police some other persons also are involved in the said offence it is the duty of the Court to proceed against those persons also. Their lordships of the Supreme Court in
5. Mr. Palit attempted to support his above submission also by saying that as the police held investigation into the matter in respect of all the accused persons mentioned in the F.I.R. the police report submitted on such investigation must be said to ''relate'' to all those accused persons even though the police recommended the trial of only some of them, and so on the provisions of Sub-sections (2) and (3) of Section 210, Criminal Procedure Code, 1973, no enquiry u/s 202, Code of Criminal Procedure in respect of the said accused persons could be made. Mr. Palit''s above contention is far-fetched and not worthy of acceptance. The words ''relate to any accused'' in Sub-section (3) of Section 210 do not refer to all the accused persons in respect of whom the investigation was made, and those words refer to the accused persons who are charge-sheeted for trial in the case. If the interpretation given by Mr. Palit is accepted that will nullify the power of the Magistrate to hold enquiry u/s 202, Code of Criminal Procedure and would render nugatory the provisions of Section 319 of the Code.
6. As stated above, the police can not have the last say in the matter and the Magistrate must satisfy himself if there is any truth in the allegations against the accused persons mentioned in the complaint petition but not charge-sheeted for trial in the police report. There is nothing in the Code of Criminal Procedure to suggest that once police investigation is done in respect of certain accused persons then the jurisdiction of the Magistrate to hold enquiry u/s 202 in respect of those accused persons is completely ousted. Sub-section (2) of Section 210, Code of Criminal Procedure provides that if a report is made by the investigating police officer u/s 173, and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall enquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. The merger contemplated under the aforesaid provisions of Sub-section (2) holds goods only in respect of the complaint case so far as it relates to the common accused persons mentioned in the complaint case and in the charge-sheet. The said merger does not affect the Magistrate''s power to proceed against additional accused persons in that case as per Section 319. Criminal Procedure Code and the decision of the Supreme Court in Raghubans Dubey''s case1. By the said merger the Magistrate also doe" not lose his right to enquire or direct investigation u/s 202, Code of Criminal Procedure into the complaint case in respect of the other accused persons not charge sheeted by the police but named in the complaint petition. The above view also gets support from Sub-section (3) of Section 210 which inter alia provides that if the police report does not relate to any accused persons in ''the complaint case then the Magistrate shall proceed with the enquiry or trial of the complaint case, which he had stayed as per Sub-section (1) of that section. In the above view of the matter I do not see any weight or substance in the submission and contentions made by Mr. Palit as stated above.
7. It is urged by Mr. Swain, the learned Counsel for opp. party No. 1 that if the Magistrate after holding the enquiry ordered by him, finds any prima facie case against any of the accused persons named in the complaint petition, but not named'' in the charge sheet filed by the police, then the Magistrate must try together the complaint case in respect of such accused persons also along with the said police case as if both the cases were instituted on a police report. I do not also subscribe to the above-mentioned view of Mr. Swain. The case instituted on police report must proceed with the accused persons mentioned in the charge-sheet and any other additional accused persons against whom the Magistrate decides to proceed in accordance with the law as laid down in Raghubans Dubey''s easel by the Supreme Court. The case against the other accused persons named in the complaint petition must proceed separately. Sub,:, Section (3) of Section 210 directly states so and the said provision is founded on good reasons. Apart from other considerations, the separate enquiry and/or trial of the complainants'' case in respect of such accused persons, as provided u/s 210(3) will enable the complainant to place his case and to examine all his witnesses either himself or through his own Advocate. He will also have a full grip over the proceeding throughout the enquiry and trial, and will not be fettered or hampered by apathetic or antipathetic attitude, if any, of the investigating or the prosecuting agency. There is, therefore, no merit in Mr. Swain''s above submission.
8. On the above discussions and considerations I am of the opinion that the Magistrate''s decision in the impugned order to hold enquiry into the complaint case in respect of the accused persons who have not been charge-sheeted in the police report is perfectly correct and justified. Before proceeding to hold that enquiry the Magistrate of course, should peruse the statements recorded by the police u/s 161, Code of Criminal Procedure and the other documents referred to in the police report submitted u/s 173, Criminal Procedure Code, and if on a consideration of the same he finds that a prima facie case is made out against any other person or persons, then he should proceed against those accused persons also in the said G.R. case in accordance with law. Soon after deciding the names of the accused persons to be proceeded against in the police case the Magistrate should hold the enquiry u/s 202, Code of Criminal Procedure in respect of the accused persons who do not figure as accused in the G.R. case and if he finds a prima facie case against any other accused persons he should proceed against them in accordance with law as observed above.
9. All steps in accordance with law in connection with both the above two cases must be taken as expeditiously and promptly as possible.
10. At one stage in the beginning, !vir. Swain faintly opposed the admission of the revision on the ground that the impugned order is an interlocutory order. But in this revision the jurisdiction of the Magistrate to hold the enquiry u/s 202. Code of Criminal Procedure was questioned on behalf of the Petitioner with reference to the new provision of Section 210, engrafted in the Criminal Procedure Code, 1973. Besides, Mr. Swain also made some submissions desiring certain observation on and Clarification of the impugned order as indicated in this judgment. This revision, therefore, was admitted and heard at length in order to settle the law on the points raised by the counsel for both the parties.
11. With the above observations and clarifications the revision is dismissed.
The lower Court record be sent back immediately.
