IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6285 of 2008 SK.SAMIULLAH, SON OF SK. SUBHAN, RESIDENT OF VILLAGE-SIRSIAN, POLICE STATION, PIPARA KOTHI, DISTRICT-EAST CHAMPARAN AT MOTIHARI. --PETITIONER Versus 1. THE STATE OF BIHAR 2. MD. IMTIYAZ, SON OF NAJIULLAH, AT SIRSIA, P.S. PIPARA KOTHI, DISTRICT-EAST CHAMPARAN. --OPP.PARTY _______ For the Petitioner : Dr. Amarendra Kumar For the State : Mr. Abhay Kumar, APP For opp.party no.2 : Mr. Shakil Ahmad Khan 6 07.05.2010 This is an application under Section 482 of the Code of Criminal Procedure seeking quashing of order passed by learned District and Sessions Judge, East Champaran at Motihari, in Cr.Rev. no. 391 of 2007 and also for quashing order dated 19.5.2007 passed by the learned Chief Judicial Magistrate, Motihari, in Pipra Kothi P.S. Case no. 14 of 2007 taking cognizance for the offence under Section 307 of the Indian Penal Code in the case against the petitioner also against whom the Police did not submit charge sheet rather found him not fit to be sent up for trial though other co- accused were sent up for trial. The court below, on going 2 through the materials collected during investigation, on taking different view, took cognizance against all accused persons including the petitioner who unsuccessfully invoked revisional jurisdiction giving rise to the present application. The learned counsel for the petitioner by placing reliance upon decision of this court in a case of Ram Nandan Singh @ Ram Nandan Yadav V. State of Bihar and Anr; 2007(3) East Criminal Case 134, submitted that the Magistrate had no power to issue process against the petitioner who was not found fit by the Police rather by doing so court below has exercised the jurisdiction of the Sessions Court under Section 319 of the Code of Criminal Procedure Code. On the fardbayan of one Md. Imteyaz, instant case was instituted against altogether eight persons wherein the petitioner Sk. Samiullah figured at serial no.3, carries allegation that while Imteyaz at about 1.00 P.M. found that from his cane field co-accused Nek Mohammad has been cutting the crops. He protested, in retaliation he was abused and said Nek Mohammad ran towards him with spade. The informant was being chased, during that period Nek 3 Mohammad threw his spade causing injury on head. On alarm some persons arrived in rescue. Meanwhile, the petitioner and others along with deadly weapons, appeared at the scene and again started assaulting the informant and persons appearing in rescue. Charge sheet no.55 of 2007 dated 14.5.2007 was submitted against three persons further stating that there is no evidence against the petitioner, and investigation against three persons was kept pending. Court below, on going through the materials, took cognizance against all the four giving rise the Cr.Rev. no. 391 of 2007 which was dismissed, the present application has been filed. No doubt, though petitioner was named in the first information report with specific allegation levelled against him but Police, finding no material against him, did not find his case fit to be sent up for trial but the Magistrate, before whom Police submitted its report under Section 173 of the Code of Criminal Procedure, has ample power to take cognizance under Section 190(i)(b)of the Code of Criminal Procedure which reads as such : “190.Cognizance of offences by Magistrates: (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate Of the second class specially empowered in this behalf under sub-section (2), may take 4 cognizance of any offence- ……………………….. (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his Knowledge, that some offence has been committed.” There are consistent decisions of this Court as well as Apex Court in this matter. In a case of Kuli Singh & Others V. State of Bihar; 1978 PLJR 500, along with other cases decided together, Full Bench of this Court has clearly held Police not sending up petitioner for trial but submitting only a final report -- Magistrate, if has jurisdiction to disagree with the police report and take cognizance against the petitioners under Section 190(i)(b) and it is further held that the Magistrate is empowered to differ with the Police report, be it a charge sheet or be it a final report, so equal. That power is implicit in Section 190(i)(b) itself. It is not necessary to look to Section 190(i)(c) for that purpose. Subsequently, the Apex Court in a case of State of Maharashtra, appellant V. Sharad Chandra Vinayak Dongr and Others ; AIR 1995 SC 231, the three Judges of Apex Court has held cognizance on Police report, police report termed as incomplete by Investigating Officer, power 5 of Magistrate to take cognizance is not lost thereby Magistrate is not bound by label put by Investigating Officer on report / charge sheet. Even earlier also three Judges Bench of Apex Court in a case of M/s India Carat Pvt. Ltd., V. State of Karnataka; AIR 1989 SC 885, has held that Magistrate can take cognizance of offence even if police report is to the effect that no case is made out. On this point the decision of the Apex Court in a case of M/s Swil Ltd. V. State of Delhi; AIR 2001 SC 2747 = 2001(4) PLJR 163, are also required to be referred wherein same view has been followed. It would not be out of place to refer two decisions of this Court on the point reported in Honi Sao V. State of Bihar (Patna) 2002(1) Eastern India Criminal Cases 209 (Patna) and in another case Ashok Yadav & another V. State of Bdihar ; 2006(1) PLJR 204, at page 205 a Bench of this court, while discussing the decision of Apex Court in Kishori Singh V. State of Bihar & Ors; 2002(1) PLJR 123 = 2001(1) BLJ 472, by placing reliance upon a decision of the Supreme Court in a case of M/s Swil Ltd (Supra) and Honi Sao (Supra) took a view that the 6 Magistrate has power to take cognizance under Section 190(i)(b) of the Code of Criminal Procedure even if Police did not submit charge sheet. On going through the decision of this Court by another single Bench in the case of Ram Nandan Singh @ Ram Nandan Yadav (Supra) wherein reliance has been placed by learned counsel for the petitioner, it appears that before the said Bench deciding the matter earlier decisions of this Court in Ashok Yadav (Supra), wherein the decision of Apex Court in the case of Kishori Singh (Supra) has already been discussed, was not placed for consideration, and subsequent Bench of this Court taking a different view arrived at the conclusion that order taking cognizance of court below was not justified. In view of earlier decision of this Court distinguishing decision of Apex Court, whereas the subsequent decision, without taking into consideration earlier decision on same point contrary view has been taken, in my opinion, the earlier decision of this court must prevail upon subsequent decision. In the result, finding no merit in this application, 7 AAhmad/ it is hereby dismissed. (Akhilesh Chandra, J.)