MINU KUMARI AND ANR. versus STATE OF BIHAR AND ORS.

Citation: [2006] 3 S.C.R. 1086 · Decided: 12-04-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
Cited by 2 judgment(s) · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

A 
B 
MINU KUMARI AND ANR. 
v. 
STATE OF BIHAR AND ORS. 
APRIL 12, 2006 
(ARIJITPASAYAT ANDS.H. KAPADIA,JJ.] 
Code of Criminal Procedure, 1973-Sections 173(2), 190(/)(b), 362 
and 482-Cognizance of offence-Summons issued by Magistrate to persons 
C named in FIR against whom police finding no involvement in crime, did not 
submit charge sheet-On an application of such persons that their names 
were included in summoning order due to clerical error, Magistrate ordered 
striking of their names from that order-District and Sessions Judge set aside 
this order on the ground that Magistrate did not have power to recall or 
review his order, and High Court upholding this view in a petition under 
D Section 482 of the Code-Correctness of-It was not a case where Magistrate 
disagreed with view of investigating agency and therefore ordered issuance 
of summons, but was case of was a mistake-As Magistrate did not proceed 
against some of the persons named in the FIR, issuance of notice to informant 
thereof was mandatory, and its non-issuance prejudiced the informant-As 
E correct procedure was not followed, High Court should have allowed the 
petition under Section 482 of the Code-Issuance of summons to 
aforementioned persons was bad and their names ordered to be struck from 
the array of accused persons. 
Code of Criminal Procedure, 1973-Section 482-Jnherent power of 
F Court-Nature and exercise of Discussed 
Maxim quando lex aliquid alicui concedit, concedre videtur et id sine 
quo res ipsae esse non protest, applicability of 
Words and phrases-'Charge sheet' or 'final report'-Meaning of-Jn 
G the context of Sections 169 and 17 3 of Code of Criminal Procedure, J 97 3. 
In an investigation pursuant to a First Information Report (FIR), police 
found that appellants were not involved in the crime and submitted charge 
sheet only against other accused. However, Chief Judicial Magistrate (CJM) 
who took cognizance of offence, directed issuance of summons against 
H 
1086 
+ 
MINU KUMAR! v. ST ATE OF BIHAR 
1087 
appellants also. Appellants filed a petition against this before CJM praying A 
that summons were issued to them due to clerical error. On this petition, 
CJM ordered striking of names of appellants from order whereby summons 
were issued. However, Additional District and Sessions Judge set aside this 
order on the ground that CJM did not have any power to recall or review his . 
order. Appellants challenged this in a petition to High Court under Section B 
482 of Code of Criminal Procedure, 1973 which came to be dismissed on the 
ground that the subordinate court could not have recalled its own order under 
Section 362 of the Code on the pretext that there was correction of clerical 
and arithmetical errors. Hence the present appeal. 
Appellant contended that even if it is conceded that the CJM Court could C 
not have recalled or reviewed its order, on the facts of the case the High Court 
should have exercised power under Section 482 of the Code. 
Allowing the appeal, the Court 
HELD: 1. When a report fonvarded by the police to the Magistrate under D 
Section 169 Cr.P.C. states that no offence has been committed and is placed 
before the Magistrate, he has option of adopting one of the three courses (1) 
he may accept the report and drop the proceeding; or (2) he may disagree 
with report and take the view that there is sufficient ground for further 
proceeding, take cognizance of the offence and issue process; or (3) he may 
direct further investigation to be made by the police under Section 156(3). 
E 
(1090-G; 1091-AI 
Abhinandan Jha and Anr. v. Dinesh Mishra. AIR (1968) SC 117 and 
Mis. India Carat Pvt. Ltd. v. State of Karna/aka and Anr., AIR (1969) 885 
referred to. 
2. Where the Magistrate takes a view that there is material for 
proceeding against some and there is insufficient ground in respect of others, 
F 
the informant would certainly be prejudiced as First Information Report lodged 
becomes wholly or partially ineffective. In such a case, notice to the informant 
and grant of opportunity of being heard in the matter becomes mandatory, G 
though there is no provision in the Code for issue of a notice in this regard. 
(1091-E, F) 
Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537, relied on. 
3.1. Section 362 of the Code permits correction of clerical or 
arithmetical errors. But High Court seems to have completely lost sight of H 
1088 
SUPREME COURT REPORTS 
(2006] 3 S.C.R. 
A the scope and ambit of Se
Excerpt shown. Read the full judgment & AI analysis in Lexace.