IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.9604 of 2010 ***** Rajendra Bhagat son of Late Chander Bhagat, resident of village- Koreya, P.S.Bheldi, District-Saran. …. …. Petitioner Versus 1. The State of Bihar. 2. Dewanti Devi wife of Late Phali Bhagat, resident of village-Koreya, P.S.Bheldi, District-Saran. …. …. Opposite Parties ----------- For the Petitioner : Mr. Ajay Kumar Jain, Advocate For the State : Mr. Anil Kumar Jha, G.A.-II ----------- PRESENT THE HON’BLE THE CHIEF JUSTICE O R D E R (30.04.2010) Dipak Misra, C.J.- In this petition preferred under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing of the order dated 11.10.2004, whereby the learned Chief Judicial Magistrate, Saran has taken cognizance for offences punishable under Sections 304/34 of the Indian Penal Code (for short „the IPC‟) ignoring the final form submitted by the investigating officer. 2. It is submitted by Mr. Ajay Kumar Jain, learned counsel appearing for the petitioner that the trial court has - 2 - only mentioned that charge-sheet was submitted against two accused persons, namely, Ganesh Bhagat and Rudal Bhagat, whereas Rajendra Bhagat was not sent-up for trial. It is urged by him the Magistrate has not indicated anything why he has differed with the investigation report and taken cognizance for the offences punishable under Sections 304/34 of the IPC. 3. Mr. Anil Kumar Jha, learned Government Advocate-2 appearing for the State supported the order of the learned Magistrate. 4. This Court in Cr. Misc. No.9581 of 2010 (Kumar Anjani @ Baijnath Kumar @ Baiju & Anr. v. The State of Bihar) decided on 7.5.2010 has held thus: - “8. Before I proceed to deal with the justifiability and defensibility of the order passed by the learned Magistrate, it is apt to note that it is well settled proposition of law that at the stage of taking cognizance of the offence by the Magistrate, the provisions contained under Section 190 of the Code are applicable. Section 190 of the Code provides that “the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence”. Upon receipt of the police report under Section 173(2) of the Code, the - 3 - Magistrate has the authority to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the Investigating Officer and independently applying his mind to the facts that emerge or emanate from the investigation and taking into consideration the statements of witnesses examined by the police. 9. In this context I may refer with profit to the decision in the case of Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 wherein it has been held thus: “In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.” 10. In this context I may also profitably refer to the decision in the case of Minu Kumari and Anr. v. State of Bihar and ors., (2006) 4 SCC 359 - 4 - wherein a two-Judge Bench of the Apex Court while dealing with the powers of the Magistrate has expressed the view as under: “11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise: the report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take congnizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to - 5 - take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See India Carat (P) Ltd. v. State of Karnataka [(1989) 2 SCC 132 : 1989 SCC (Cri) 306 : AIR 1989 SC 885)]”. 11. In paragraph 21 in Minu Kumari (supra), - 6 - while considering the factual matrix, their Lordships has held thus: “21. When the factual scenario is considered in the background of legal principle set out above, the inevitable conclusion is that the High Court was not justified in rejecting the application in terms of Section 482 of the Code. This is a case when the cognizance was taken, summons were issued by mistake and the names of the appellants were also mentioned in the order dated 15.2.1999. Since the police have not found any material against the appellants, the learned CJM without following the procedure as indicated above could not have directed issuance of summons so far as they were concerned. There was no indication that learned CJM dis-agreed with the opinion of the investigating agency and therefore ordered issuance of summons. On the contrary, as noted by learned CJM later that it was a mistake and, therefore, he had ordered to strike off the names of the appellants. The High Court's order is set aside. The names of the appellants shall be struck off from the array of accused persons.” 12. In Horil Sao & Ors. v. The State of Bihar & Ors., 2002 (1) PLJR 318, Chandramauli Kr. Prasad, J. (as his Lordship then was) in paragraphs 17 & 18 has observed thus: - 7 - “17. For the reasons stated above I do not have slightest doubt in mind that the learned Magistrate while exercising its power under section 190 of the Code is not bound by the conclusion arrived at by the officer incharge of the police station in a case exclusively triable by Court of Sessions while submitting the report under Section 173 of the Code and in a case in which the materials collected during the course of investigation and forming part of the report under section 173 Cr.P.C., prima facie, suggest complicity of the accused persons in the crime although named in the FIR but not chargesheeted, still the Magistrate can differ with the conclusion and take cognizance of the offence. The Magistrate has such power under Section 190 of the Code. I hasten to add that although the police is master of investigation but what treatment has to be given to the report is in the domain of the Magistrate. 18. It is relevant to state here that the materials collected during the course of the investigation and forming part of the report under section 173 Cr.P.C. indicate prima facie complicity of the petitioners in the crime and challenge to the order taking cognizance is not made on the ground that no such material exists.” - 8 - 13. In view of the aforesaid enunciation of law it is clear as crystal that the Magistrate can differ with the investigating report and take cognizance of offences against the offenders, who have not been charge-sheeted. In the case at hand, the learned Magistrate has not indicated anything in the order why he has disagreed with the opinion of the investigating agency. As per the decision rendered in Minu Kumari & Anr. (supra), he has to independently apply his mind. No doubt, he has the jurisdiction to ignore the conclusion arrived at by the Investigating Officer, but the order must indicate at least, prima facie, that he has independently applied his mind to take cognizance in respect of certain other persons, who have not been sent up for trial. The order passed by the learned Magistrate, as is patent, does not indicate anything of that nature. There is totally non- application of mind. Therefore, the order taking cognizance as far as the present petitioners are concerned deserves to be set aside and, accordingly, it is so ordered. The learned Magistrate shall consider the material brought on record and, thereafter, proceed to pass appropriate orders as per law. 14. In the result, the application is allowed and the order passed by the learned Magistrate taking cognizance against the present - 9 - petitioners, namely, Kumar Anjani @ Baijnath Kumar @ Baiju and Sunita Devi is set aside and the matter is remitted to the concerned Magistrate to consider the material afresh and pass appropriate orders in accordance with law.” 5. In view of the aforesaid pronouncement of law, the order impugned has to be set aside as far as the present petitioner is concerned and the learned Magistrate is directed to consider the matter in the light of the law laid down above within a period of six weeks hence. 6. The Criminal Miscellaneous is allowed to the extent indicated above. (Dipak Misra, CJ) Patna High Court The 30th April, 2010 NAFR Pawan/-