IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.46667 of 2009 1. SURYAMANI DEVI, wife of Ramesh Singh 2. Daizy Devi, wife of Manoj Singh 3. Manoj Singh, son of Ramesh Singh 4. Pawan Singh, son of Ramesh Singh All resident of Village Shikharichak, PS Mokama, District Patna ……… Petitioners Versus STATE OF BIHAR . ----------- For the Petitioner: Mr Ajay Kumar Thakur,Advocate For the State : APP ------ 2. 01.04.2010 Heard leaned Counsel for the petitioners and the learned Counsel for the State. The petitioners who are named accused are aggrieved by the order dated 10.12.2009 in Mokama PS Case No. 117 of 2009 taking cognizance and summoning them to face trial under Sections 306 and 120B of the Penal Code. The allegations are that they poured kerosene oil on the informant and set her body on fire when she came to be deceased. Learned Counsel submits that the Police submitted final form. The present petitioners were not sent up for trial. Certain others not named have been chargesheeted. If the Magistrate differed with the final form he was required to indicate reasons as to why he was satisfied from the investigation materials that the petitioners were required tobe summoned to face trial contrary to the findings of the Police. He relies upon the judgments reported in AIR 1996 SC 309 (Mrs. Rupan Deol Bajaj & anr Vs Kanwar Pal Singh Gill), 2007 (2) PLJR 150 (Hiralal Gupta Vs The State of Bihar) and 2007 (2) PLJR 828 (Ram Nandan Singh @ Ram Nandan Yadav Vs State of Bihar). 2 Counsel for the State has opposed the application. That the Magistrate under Section 190 Cr.P.C. has jurisdiction to differ with the final form submitted by the Police and take cognizance against those who may not have been sent up for trial stands well settled. At this stage, the Magistrate is not required to await the proceedings under Section 319 Cr.P.C. and is well within his jurisdiction if he is satisfied from the materials collected during investigation that cognizance needs to be taken against certain others also. The Supreme Court in M/s SWIL Ltd. Vs State of Delhi & anr, 2001 (4) PLJR 163 (SC) at paragraphs 6 & 7 has observed:- “6. In our view, from the facts stated above it is clear that at the stage of taking cognizance of the offence, provisions of S. 190, Cr.P.C. would be applicable. Section 190 inter alia provides that 'the Magistrate may take cognizance of any offence upon a Police report of such facts which constitute an offence'. As per this provision. Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under S. 204, Cr.P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the Police Officer and other documents tendered along with charge-sheet. Further, upon receipt of Police report under S. 173(2), Cr.P.C., the Magistrate is entitled to take cognizance of an offence under S. 190(1)(b) 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 merging from the investigation by taking into account the statement of thewitnesses examined by the Police. At this stage, there is no question of application of S. 319, Cr.P.C. Similar contention was negatived by this Court in Raghubans Dubey v. State of Bihar (1967) 2 SCR 423 : (AIR 1967 SC 1167 : 1967 Cri LJ 1081) by holding thus (para 9 of AIR, Cri LJ) : "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 3 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." 7. Further, in the present case there is no question of referring to the provisions of S. 319, Cr.P.C. That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated under S. 2(g), Cr.P.C. nor the trial had started. He was exercising his jurisdiction under S. 190 of taking cognizance of an offence and issuing process. There is no bar under S. 190, Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet.” The case of Mrs. Rupan Deol Bajaj (Supra) relied upon by the petitioners is distinguishable on its own facts. It is apparent from Paragraph 28 of the said judgment that acceptance of the final form was being opposed by the complainant. There was thus a lis. Both sides had been heard. It was in that context that the court held that fairness required a brief order indicating reasons which would introduce clarity and minimize arbitrariness. It needs only to be noted at this stage that the offences therein in any event were far less in nature under Sections 352, 354, 341 and 342 of the Penal Code. In the present case, the Magistrate has exercised his statutory powers under Section 190 Cr.P.C. There was no lis before him with regard to the acceptance of the final form being opposed by anyone. In so far as the case of Hiralal Gupta (Supra) is concerned, the offences were under Sections 409, 467, 468, 471, 477A & 35 of the Penal Code. While holding that the Magistrate 4 had full jurisdiction to differ with the recommendations of the Police, the Court appears at Paragraph 12 of the judgment to have been primarily persuaded on the ground that the amount involved was meager and the petitioner was not directly responsible for payment and execution of work. In the present case the allegations are serious and direct. In so far as the case of Ram Nandan Singh @ Ram Nandan Yadav (Supra) is concerned, the conclusion that a person not chargesheeted can only be summoned under Section 319 Cr.P.C. and not otherwise stands best answered by the judgment reported in the case of M/s SWIL Ltd (Supra). This application is dismissed. Snkumar/- (Navin Sinha,J.)