JUDGMENT
1. Heard Mr. S. Medhi, learned counsel for the petitioner and P.P.
2. On 14.10.1997 Sri Utpal Baruah, Ushanagar, Tezpur filed a FIR stating inter alia that due to assurance given to him by Rita Kalita for marriage, he took her to Mallika Jewellery and gave 31/2 tolas gold for making ornament, but the gold ornaments were super -stltiously taken away by accused person. In this connection, police registered a case under G.R. No. 1310/97 and started investigation. Thereafter, the police submitted final report being No. 377/97 u/s 173, Cr.P.C. stating inter alia that the dispute between first informant and accused/petitioner arose on misunderstanding of fact. The learned Chief Judicial Magistrate, Sonitpur, however, did not accept the final report; on the contrary, it took cognizance of the case and transfer. The Additional Chief Judicial Magistrate issued bailable warrant of arrest against the accused petitioner. Hence, the present revision.
3. Mr. Medhi submits that once police submits final report, the Magistrate has no power to take cognizance of offence. In case he is not satisfied, with the report, he may direct the police to make further investigation as provided Sub-clause 8 of Section 173 Cr.P.C, There is no dispute at the bar that the Magistrate has power to direct for further investigation on the receipt of final report. The question,
however, crops up of consideration is whether on submission of final report, the Magistrate can take cognizance of offence as provided Sub-clause 1(B) of Section 190, Cr. P.C. Section 190 Cr. P.C.1(B) provides:
“190. Cognizance of offences by Magistrate. – (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 cognizance of any offence-
(b) Upon a police report of such facts ;
4. In the case of Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117, the Apex Court held that on receipt of report under section 169 the Magistrate cannot direct the police to submit a chargesheet but in case of disagreement, he may take cognizance Under Section 190(1)(c) or may order further investigation Under Section 156(3) Cr.P.C.
5. In a latter decision, in the case of India Carat Pvt. Ltd. v. State of Karnataka, the Apex Court held:
“The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled 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. 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 an 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, in exercise of 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. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.”
6. In view of the above settled proposition of law, I held that Magistrate had power to take cognizance of offence in case final report is submitted by the police. In the present case, the cognizance was
taken on the basis of materials on record.
7. The next submission of the learned counsel Mr. Medhi is that the order taking cognizance of offence is a cryptic one as the Magistrate did not apply his mind to the facts. The law is well settled in this regard. When the Magistrate takes cognizance of offence, he should apply his mind carefully in the case. In the instant case, it is apparent that the Magistrate did not apply his mind to the facts constituting the alleged offence. Accordingly, impugned order dated 5.9.1998 passed by the Chief Judicial Magistrate in G.R. Case No.1310 of 1997 is hereby set aside and the matter is remitted to the CJM to pass a fresh order in accordance with law. The Revision petition stands disposed of. Send down the records.