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Code of Criminal Procedure, 1973: s.190(1)(b) – Cognizance of offence by magistrate – Held: Magistrate can apply his mind independently and take cognizance of offence in exercise of his powers u/s.190(1)(b) even if tha report of investigating agency in final form exonerates the accused – Penal Code, 1860 – ss.302, 291/34 – Arms Act, 1959 – s.27. During election process, an offence took place and an FIR came to be lodged under Sections 302, 291/34 IPC and Section 27 of the Arms Act. The matter created a lot of turmoil which resulted in transfer of the investigation to the C.I.D. The informant challenged the same before the High Court. The High Court directed the C.I.D. and the Police, to submit their reports to the concerned magistrate within two months from the date of the order and upon such report, the magistrate was directed to proceed according to law after considering both the reports and the case diary. By virtue of the order of the High Court, the investigation continued both by the C.I.D. and the local police and the reports in final form were filed exonerating the petitioner. However, after examining the materials in the case diary, the magistrate differed with the final report submitted by the investigating agency and took cognizance of offence against the petitioner. The petitioner filed an application under Section 227 Cr.P.C. before the Session Court for discharge from the case, which was dismissed and a date was fixed for framing of charge. The High Court dismissed the petition for quashing the order of Session Court. The instant special leave petition was filed challenging the order of the High Court. =Dismissing the special leave petition, the Court HELD: 1. The law is well-settled that even if the investigating authority is of the view that no case has been made out against an accused, the magistrate can apply his mind independently to the materials contained in the police report and take cognizance thereupon in exercise of his powers under Section 190(1)(b) Cr.P.C. That precisely happened in the instant case. The investigation was handed over to the C.I.D. and both the C.I.D. and the local police submitted their reports in final form exonerating the petitioner of the allegations made against him in the F.I.R. However, the magistrate took cognizance of the offence under Section 302/379 IPC and Section 27 of the Arms Act against the petitioner. This was not a case where the magistrate took recourse to any further inquiry but took cognizance on the police report itself, which he was entitled to do under Section 190(1)(b) Cr.P.C. Even otherwise, the charges were framed against the petitioner which had rendered the instant proceedings infructuous. [Paras 15-17] India Carat Pvt. Ltd. v. State of Karnataka & Anr. (1989) 2 SCC 132; Abhinandan Jha v. Dinesh Mishra (1967) 3 SCR 668 – relied on. Dharampal & Ors. v. State of Haryana & Anr. (2004) 13 SCC 9 – distinguished. Raj Kishore Prasad v. State of Bihar (1996) 4 SCC 495; Ranjit Singh v. State of Punjab (1998) 7 SCC 149; Kishun Singh & Ors. v. State of Bihar (1993) 2 SCC 16; Kishori Singh & Ors. v. State of Bihar & Anr. (2004) 13 SCC 11 – referred to. Case Law Reference: (1996) 4 SCC 495 referred to Para 9 (1998) 7 SCC 149 referred to Paras 10,11,12 (1993) 2 SCC 16 referred to Para 11, 13 (2004) 13 SCC 11 referred to Para 12 (1989) 2 SCC 132 relied on Para 12 (2004) 13 SCC 9 distinguished Para 13 (1967) 3 SCR 668 relied on Para 15 (2004) 13 SCC 9 distinguished Para 13,14,15 CRIMINAL APPELLATE JURISDICTION : From the Judgment & Order dated 12.05.2009 of the High Court of Judicature at Patna in Cr. Misc. No. 18909 of 2007. P.S. Mishra, Nagendra Rai, Alok Kumar, Tathagat Harshvardhan, Upendera Mishra, Dhrub Jha, Shantanu Sagar, Smarhar, Md. Shahid Anwar, Gopal Singh, Manish Kumar, Chandan Kumar for the appearing parties.

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 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 SPECIAL LEAVE PETITION(CRL.) No.5123 of 2009

UMA SHANKAR SINGH ... PETITIONER

 Vs.

STATE OF BIHAR & ANR. ... RESPONDENTS

 J U D G M E N T

ALTAMAS KABIR, J.

1. On 17th February, 2000, one Vijay Singh,

 brother of Bharat Singh (deceased) and

 Damodar Singh, who was an independent

 candidate in the elections to the Bihar

 Assembly, lodged a First Information Report
 2

with Maharajganj Police Station which was

recorded as Maharajganj P.S. Case No.14 of

2000. In the said F.I.R. it was indicated

that Damodar Singh, the informant's brother

was contesting the elections to the Bihar

Assembly as an independent candidate. While

the polling of votes was in progress, Bharat

Singh was sitting in the Election office when

he received information that bogus votes were

being cast at a particular booth and upon

hearing a bomb explosion at about 11.30 a.m.,

he proceeded to the place where the incident

was taking place. According to the F.I.R.

version, the informant reached the place in a

jeep while Bharat Singh followed him on a

motorcycle. On reaching the place they were

informed that a boy had sustained injuries

and had been rushed to the Maharajganj State

Hospital for treatment.
 3

2. When they were leaving the hospital premises,

 Uma Shankar Singh who was a candidate of the

 Samata Party in the Assembly election, and

 his son Jitendra Swami, accompanied by some

 unknown persons armed with different weapons,

 arrived at the place of occurrence and on the

 orders of Uma Shankar Singh, his son Jitendra

 Swami pulled down Bharat Singh from his

 motorcycle, pushed him into his car and drove

 out to an unknown destination.

3. Initially, the FIR was lodged under Section

 364/34 IPC, but after the body of Bharat

 Singh was found, Sections 302, 291/34 IPC and

 Section 27 of the Arms Act were also added.

 The matter created a lot of turmoil which

 resulted in the investigation being

 transferred to the CID. The informant, Vijay

 Singh, becoming unnerved by the said decision

 of the State Government, challenged the same

 in Crl. W.J.C. No.288 of 2000, which was
 4

disposed of by the High Court on 9th April,

2001, upon observing that the matter appeared

to be a fight between two political

personalities and when investigation had

already been completed by one agency and was

also to be completed by the CID, the question

would arise as to whether the investigation

report under Section 173(2) Cr.P.C. would

have to be filed both by the first

investigating agency and also by the CID.

The High Court directed the CID and the

Superintendent of Police, Siwan, to submit

their reports to the concerned Chief Judicial

Magistrate within two months from the date of

the order and upon such report being

submitted, the Chief Judicial Magistrate was

directed to proceed according to law after

considering both the reports and the case

diary.
 5

4. By virtue of the order of the High Court,

 investigation continued both by the CID and

 the local police and it was decided to file a

 report in final form against the Petitioner,

 though some other accused were charge-

 sheeted. However, after examining the

 materials in the case diary, the Chief

 Judicial Magistrate differed with the Final

 Report submitted by the investigating agency

 to take cognizance against Jitendra Swami and

 some other accused persons.

5. This led the Petitioner to file an

application under Section 227 Cr.P.C. for

discharge from the case. The said application

was taken up for consideration by the First

Additional Sessions Judge, Siwan, who by his

order dated 9th March, 2007, rejected the

petitioner's prayer for discharge under Section

227 Cr.P.C. and fixed a date for framing of

charge.
 6

6. The Petitioner thereupon filed Crl. Misc.

Case No.18909 of 2007 in the Patna High Court for

quashing the order passed by the First Additional

District and Sessions Judge, Siwan, on 9th March,

2007, rejecting the Petitioner's prayer for

discharge from the case. The High Court dismissed

the Crl. Misc. Case vide its order dated 12th May,

2009. This Special Leave Petition was filed on

17th July, 2009, against the said judgment and

order of the High Court.

7. On behalf of the Petitioner it was urged that

when he was not named as an accused in the

charge-sheet filed by the investigating agency,

the Magistrate could not have taken cognizance as

far as he was concerned and the trial court

should have waited till the stage of Section 319

Cr.P.C. if at all the Petitioner was to be

arrayed as an accused. Mr. P.S. Mishra, learned

Senior Advocate, reiterated the oft-repeated

saying that cognizance is taken of an offence and
 7

not the offender. Mr. Mishra submitted that the

case was also investigated by the C.I.D. on the

directions of the High Court and, although, the

alleged offence was triable by a Court of

Session, the learned Magistrate erroneously took

cognizance thereof.

8. Mr. Mishra urged that one of the modes of

taking cognizance of an offence by the Magistrate

under Section 190 Cr.P.C. is upon a police report

of facts constituting the offence. Mr. Mishra

submitted that prior to the enactment of the Code

of Criminal Procedure, 1973, which replaced the

Code of Criminal Procedure, 1898, if the

Magistrate disagreed with the Final Report filed

by the investigating agency, he was at liberty to

hold a separate enquiry and to take cognizance

thereafter. Under the new Code, however, such a

procedure was eliminated by virtue of the

amended provisions of Section 209 which made it

quite clear that when in a case instituted on a
 8

police report or otherwise, the accused appears

or is brought before the Magistrate who is of the

view that the offence is triable exclusively by

the Court of Session, he shall, after complying

with the provisions of Sections 207 and 208, as

the case may be, commit the accused to the Court

of Session. It was urged that the Magistrate was

left with no choice to hold an enquiry but to

make an order of commitment when the facts

disclosed an offence triable by the Court of

Session. In other words, if the Final Report

under Section 173(2) Cr.P.C. exonerated an

accused, there was no scope for the Magistrate to

hold an inquiry for the purpose of taking

cognizance, but to wait for the stage of Section

319 Cr.P.C. if at all cognizance was to be taken

in respect of such accused on material that may

have surfaced during the trial.

9. In support of the said proposition reliance

was placed on the decision of this Court in Raj
 9

Kishore Prasad vs. State of Bihar [(1996) 4 SCC

495], wherein this Court when confronted with a

similar question held that in order to apply

Section 319 Cr.P.C. against any person other than

the accused, it would depend on the evidence

recorded in the course of any inquiry or trial

and that proceedings before a Magistrate under

Section 209 Cr.P.C. are not trial proceedings nor

were they ever meant to be.

10. Reference was then made to a decision of a

Three Judge Bench of this Court in Ranjit Singh

vs. State of Punjab [(1998) 7 SCC 149], wherein

the Hon'ble Judges took the view that when a case

is committed to the Court of Session under

Section 209, the Court of Session has no

jurisdiction to include a new person as accused

before evidence was led on behalf of the

prosecution and that there was no power other

than the power conferred under Section 319

Cr.P.C. by which the Court of Session could join

a new person as accused. It was held that there
 10

is no intermediary stage between committal under

Section 209 Cr.P.C. and Section 319 Cr.P.C. for

the aforesaid purpose.

11. Mr. Mishra submitted that the views expressed

in Ranjit Singh's case (supra) were contrary to

those expressed by this Court in the case of

Kishun Singh & Ors. vs. State of Bihar, [(1993) 2

SCC 16], where, although, 20 persons had been

named in the F.I.R., the Magistrate had committed

18 to the Court of Session under Section 209

Cr.P.C. to stand trial. On an application made

under Section 319 Cr.P.C. indicating the

involvement of the other two accused as well, a

prayer was made that they should also be summoned

and arraigned before the court as accused persons

along with the 18 other accused already named in

the charge-sheet. Despite objections raised on

behalf of the said two persons, the Sessions

Judge, in exercise of his discretion, added the

said persons as accused along with the 18 others.
 11

The criminal revision preferred from the order of

the learned Sessions Judge was dismissed by the

High Court. This Court while granting special

leave held that although the stage of Section 319

had not been reached, on the materials available,

the Sessions Judge was within his jurisdiction in

taking cognizance against the said two persons

under Section 193 of the Code.

12. The same question once again fell for

consideration in Kishori Singh & Ors. vs. State

of Bihar & Anr. [(2004 (13) SCC 11], where the

decision rendered by this Court in Ranjit Singh's

case (supra) was followed, although, another

decision in the case of India Carat Pvt. Ltd. vs.

State of Karnataka & Anr. [(1989) 2 SCC 132], was

also cited wherein another Bench of three Judges

of this Court had held that despite the police

report that no case had been made out against the

accused, the Magistrate can take cognizance of

the offence under Section 190(1)(b), taking into
 12

account the statement of witnesses made under

police investigation and issue process.

13. Ultimately, the case of Dharampal & Ors. vs.

State of Haryana & Anr. [(2004) 13 SCC 9], came

up for consideration before a Bench of two Judges

when on account of the different views expressed

by different Benches of this Court, the case was

directed to be heard by a three Judge Bench.

After considering the various decisions in

connection with the said issue, the three Judge

Bench observed that prima facie it did not think

that the interpretation reached in Ranjit Singh's

case (supra) was correct and that the law was

clearly enunciated in Kishun Singh's case

(supra). Further, having regard to the fact that

the decision in Ranjit Singh's case (supra) was a

three-Judge Bench, the learned Judges directed

that the matter be placed before the Hon'ble the

Chief Justice of India for placing the matter

before a larger Bench.
 13

14. Mr. Nagendra Rai, learned Senior Advocate

appearing for some of the respondents, on the

other hand, submitted that the question referred

to the larger Bench in Dharampal's case (supra)

is not really material for a decision in this

case where the fact situation was different. Mr.

Rai urged that the law was well-settled that the

Magistrate was not bound to accept the Final

Report filed by the investigating authorities

under Section 173(2) Cr. P.C. and was entitled to

issue process against an accused even though

exonerated by the said authorities, without

holding any separate enquiry, on the basis of the

Police Report itself.

15. There is substance in Mr. Rai's submission

that for a decision in the facts of the case, it

is not necessary to wait for the outcome of the

result of the reference made to a larger Bench in

Dharampal's case. The reference is with regard

to the Magistrate's power of enquiry if he
 14

disagreed with the Final Report submitted by the

investigating authorities. The facts of this case

are different and are covered by the decision of

this Court in the case of India Carat Pvt. Ltd.

(supra) following the line of cases from

Abhinandan Jha vs. Dinesh Mishra (1967) 3 SCR 668

onwards. The law is well-settled that even if the

investigating authority is of the view that no

case has been made out against an accused, the

Magistrate can apply his mind independently to

the materials contained in the police report and

take cognizance thereupon in exercise of his

powers under Section 190(1)(b) Cr.P.C.

16. That is precisely what has happened in the

present case. In the instant case the

investigation had been handed over to the C.I.D.

and both the C.I.D. and the local police had

submitted their reports in final form exonerating

the petitioner of the allegations made against

him in the F.I.R. However, the Chief Judicial
 15

Magistrate, Siwan, took cognizance of the offence

under Section 302/379 IPC and Section 27 of the

Arms Act against the petitioner. This is not a

case where the Magistrate took recourse to any

further inquiry but took cognizance on the police

report itself, which he was entitled to do under

Section 190(1)(b) Cr.P.C.

17. Even otherwise, the Petitioner thereafter

filed an application for discharge before the 1st

Additional District and Sessions Judge, Siwan, in

Sessions Trial No.281 of 2006, but such prayer

under Section 227 Cr.P.C. was dismissed and a

date was fixed for framing of charge. We have

been informed that charges have since been framed

against the petitioner which has rendered the

present proceedings infructuous and the

Petitioner's remedy, if any, will no longer be

available therein.
 16

18. The Special Leave Petition is, therefore,

dismissed in the light of the aforesaid

observations.

 ................................................J.
 (ALTAMAS KABIR)

 ................................................J.
 (A.K. PATNAIK)
New Delhi
Dated: 09.09.2010.
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