Upendra Narayan Singh @ Upendra Ku

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Miscellaneous Petition No. 2469 of 2014
--Upendra Narayan Singh @ Upendra Kumar Singh
son of Late Shivjatan Prasad Singh, permanent resident
of Village Alwarpur, PO Alwarpur, PS Gourichak,
District Patna, Bihar
…
…
Petitioner
Versus
Union of India through Central Bureau of Investigation
…
…
Opposite Pary
--CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
--For the Petitioner
For the Opposite Party
: Mr. Parth S. A. Swaroop Pati, Advocate
: Mr. Md. Mokhtar Khan, ASGI
---
C. A. V. ON – 15.12.2014
PRONOUNCED ON – 06.02.2015
Heard Sri P. A. S. Pati, learned counsel appearing on behalf of
the petitioner, and Sri. Md. Mokhtar Khan, learned counsel appearing
on behalf of the Central Bureau of Investigation.
2.
In this application, the petitioner has prayed for quashing the
order dated 05.06.2014 passed by the learned Sub-Divisional Judicial
Magistrate cum Special Magistrate (C.B.I.), Dhanbad by which
cognizance has been taken for the offences under Sections 120B, 323,
304 and 343 of the Indian Penal Code in connection with R.C. 1
(S)/2007 corresponding to S.T. No. 299 of 2010 which has been
registered under Section 304/34 of the Indian Penal Code.
3.
The prosecution story as per the First Information Report is that,
the informant's son was taken to the Police Station on 22.12.2005 by
the City D.S.P., and the then Officer Incharge, Sector 12 Police
Station. It was alleged that subsequently his son was found dead on
01.01.2006 and that the case was of a custodial death. As such, the
case was registered on the basis of direction of this Court passed in
W.P.(P.I.L.) No. 1654 of 2006 vide order dated 22.12.2006.
4.
After investigation was conducted by the C.B.I., a charge-sheet
was submitted under Sections 120B, 323 and 343 of the Indian Penal
Code dated 16.10.2008 against the petitioner and one Rukhsar
Ahmad.
So
far
as
the
other
co-accused
namely
Smt.
-2Sandhya Rani Mehta was concerned she was not charge-sheeted by
the Investigating Officer. On a protest petition having been filed by the
informant, the learned S.D.J.M. cum Special Magistrate (C.B.I.) vide
order dated 09.02.2009 was pleased to take cognizance under
Sections 120B, 323, 304 and 343 of the Indian Penal Code not only
against the two charge-sheeted persons namely, Upendra Kumar
Singh, the present petitioner and Rukhsar Ahmad, but also against
Smt. Sandhya Rani Mehta, the then City Dy.S.P., Bokaro.
5.
It further appears that on 11.08.2011 charges were framed
against the petitioner for the offences punishable under Sections 120B,
304, 323 and 343 of the Indian Penal Code.
6.
The co-accused Sandhya Rani Mehta against whom cognizance
was taken by the learned Sub-Divisional Judicial Magistrate cum
Special Magistrate, C.B.I., Dhanbad on 09.02.2009 challenged the
same order before this Court in Cr.M.P. No. 1149 of 2009 which was
disposed of on 16.04.2014 with the following observations:
“Accordingly, the order taking cognizance is
hereby quashed.
However, the matter is again
remanded back before the Magistrate to proceed in the
matter in accordance with law as indicated above as
early as possible preferably within a period of six weeks
from the date of receipt of a copy of this order.”
7.
Pursuant to the aforementioned order dated 16.04.2014 passed
by this Court, the learned S.D.J.M. passed an order dated 05.06.2014
taking cognizance once again for the offences punishable under
Sections 120B, 304, 323 and 343 of the I.P.C. and so far as criminal
proceeding with respect to Mrs. Sandhya Rani Mehta is concerned, the
same was dropped.
8.
Assailing the impugned order taking cognizance, the learned
counsel for the petitioner has submitted that vide order dated
09.02.2009 cognizance was already taken by the learned S.D.J.M.
cum Special Magistrate, C.B.I. for the offences under Sections 120B,
304, 323 and 343 of the I.P.C. and pursuant to the said order taking
cognizance, after commitment charges have also been framed against
the petitioner vide order dated 11.08.2011. He has further submitted
that cognizance for an offence cannot be taken twice and the learned
cognizance taking Court has committed an illegality in once again
taking cognizance for the offences mentioned therein.
-39.
The learned counsel for the C.B.I., on the other hand, has
submitted that although cognizance has been taken twice, but the
subsequent order taking cognizance would not vitiate the proceeding
on the ground that the same is not an illegality, but a mere irregularity.
10.
After hearing the learned counsel for the petitioner and learned
counsel for the C.B.I. and after going through the record, the same
reflects that admittedly cognizance was taken for the offences under
Sections 120B, 304, 323 and 343 of the I.P.C. by the learned S.D.J.M.
cum Special Magistrate, C.B.I. vide order dated 09.02.2009.
The
learned trial court had also framed charges against the petitioner vide
order dated 11.08.2011. Subsequent to the remand by this Court in
Cr.M.P. No. 1149 of 2009, a fresh order was passed on 05.06.2014 in
which once again cognizance has been taken for the offences
mentioned therein.
11.
It is well-settled that cognizance of an offence can be taken only
once. In the present case admittedly cognizance has been taken twice
which is not permissible under the law. In the case of “Dharam Pal
and others Vs. State of Haryana and another” reported in (2014) 3
SCC 306 with respect to the question as to whether under Section 209
of the Cr.P.C., the Magistrate was required to take cognizance of the
offence before committing the case to the Court of Sessions it was held
therein that:
“39. ...............It is well settled that cognizance
of an offence can only be taken once. In the event, a
Magistrate takes cognizance of the offence and then
commits the case to the Court of Sessions, the question
of taking fresh cognizance of the offence and,
thereafter, proceed to issue summons, is not in
accordance with law. If cognizance is to be taken of the
offence, it could be taken either by the Magistrate or by
the Court of Session. The language of Section 193 of
the Code very clearly indicates that once the case is
committed to the Court of Session by the learned
Magistrate, the Court of Session assumes original
jurisdiction and all that goes with the assumption of
such jurisdiction. The provisions of Section 209 will,
therefore, have to be understood as the learned
Magistrate playing a passive role in committing the case
to the Court of Session on finding from the police report
that the case was triable by the Court of Session. Nor
can there be any question of part cognizance being
taken by the Magistrate and part cognizance being
taken by the learned Sessions Judge.”
-412.
In the present case, after the learned S.D.J.M. cum Special
Magistrate, C.B.I. had already taken cognizance of the offence vide
order dated 09.02.2009 and had committed the case to the Court of
Sessions, where charges were also framed vide order dated
11.08.2011. The learned S.D.J.M. was precluded from taking fresh
cognizance of the offences as has been done vide order dated
05.06.2014 as the same would not only be an irregularity, but also an
illegality. Therefore, the order dated 05.06.2014 so far it relates to
taking of cognizance for the offences punishable under Sections 120B,
304, 323 and 343 of the I.P.C. is concerned, the same being without
the sanction of law deserves to be quashed. Accordingly, the order
dated 05.06.2014 so far it relates to taking of cognizance is quashed
with respect to the petitioner only.
13.
This application is accordingly allowed.
(Rongon Mukhopadhyay, J)
R.Shekhar/NAFR/Cp.3.