JUDGMENT
Manoranjan Prasad, J.
1. This revision application by the informant-petitioner is directed against the order dated the 19th April 1979 passed by the Chief Judicial Magistrate, Samastipur, in G. R. case No. 3437 of 1978 refusing to take cognizance against the accused opposite-party under Section 409 of the Indian Penal Code after differing from the police report.
2. The petitioner, Dr. Kamleshwar Prasad Nayak, is the vice-Chairman of the Notified Area Committee, Dalsingsarari, and the opposite-party, Shyam Sunder Choudhary, is the cashier under suspension in the said Notified Area Committee. The petitioner, as informant had made a written report dated the 8th December, 1978, to the officer in-charge of the Dalsing Sarai police station. His case therein was that the opposite party was working as a cashier in the Notified Area Committee and he had paid no heed to his written and oral directions to keep the cash of the Notified Area Committee in the iron safe of the Notified Area Committee, on the 8th December, 1978 also, he had directed the opposite party to deposit the cash in his hand, which amounted to about Rs. 4,000/-, with the Accountant, Ramchandra Chaudhar, so that the cash may be kept in the iron safe, but he had failed to do so. The complaint of the petitioner in his said written report was that the opposite-party was keeping the said cash in his hand against the rules, and a prayer was made therein to take necessary action in the matter.
3. On the basis of the said written report dated the 8th December, 1978 of the petitioner, Dalsingsarai P. S. Case No. 4 dated the 8th December, 1978 was registered against the opposite party under Section 409 of the Indian Penal Code in which the police, after completion of the investigation, submitted charge-sheet No. 108 dated the 25th December, 1978 against the opposite-party for his prosecution under Section 409 of the Indian Penal Code. On receipt of the said charge-sheet, however, the learned Chief Judicial Magistrate heard the parties, but being not satisfied with the investigation, he by his order dated the 16th February, 1979, ordered further investigation and directed for submission of a supplementary report.
4. Accordingly, the police made further investigation into the matter and submitted a supplementary report dated the 18th March, 1979 which disclosed that different amounts of the Notified Area Committee had been retained in the hands of the opposite-party for different periods varying from one day to twelve days before the lodging of the first information report by the petitioner on the 8th December, 1978, and the total of these amounts came to Rs. 4042/25 paise which he, however, deposited in the Samastipur treasury on the 9 December 1978, that is, on the very next day of the lodging of the first information report, dated the 8th December, 1978 by the petitioner. The learned Chief Judicial Magistrate considered this supplementary report dated the 18th March, 1979 submitted by the police but, by his impugned order dated the 19th April, 1979, he refused to take cognizance against the opposite-party under Section 409 of the Indian Penal Code mainly on the ground that the action of the opposite-party amounted at best to a breach of Rule 22 of the Bihar Municipal Accounts Rules, 1928 which lays down that all moneys received on account of the municipality shall be remitted intact to the treasury as often as can be conveniently managed and shall on no account be appropriated towards expenditure, and it did not amount to any offence under Section 409 of the Indian Penal Code as the essential ingredient of criminal breach of trust, namely, dishonest misappropriation or conversion of the amount to this own use is not made out.
5. Against the said order dated the 19th April, 1979 refusing to take cognizance against the opposite party under Section 409 of the Indian Penal Code in this police case, in which the State is the prosecutor, no revision has been filed by the State, and the present revision application has been filed by the informant, Dr. Kamleshwar Prasad Nayak, the Vice-Chairman of the Notified Area Committee, and that also by only impleading the accused Shyam Sunder Chaudhary as the opposite party, but without making the State even a party in the revision application.
6. At the outset, Mr. Jai Narayan, Learned Counsel appearing for the opposite party Shyam Sunder Chaudhary, has raised a preliminary objection regarding the maintainability of this revision application at the instance of the informant, Dr. Kamleshwar Prasad Nayak, Vice-Chairman of the Notified Area Committee, when no revision has been filed against the impugned order by the State, specially when the petitioner has not even made the State a party to this revision application. In this connection, he has placed reliance on a Supreme Court decision in the case of Thakur Ram and Ors. v. The State of Bihar , in which it has been held that in a case which has proceeded on police report a private party has no locus standi . It has further been held therein that no doubt, the terms of Section 435 of the Code of Criminal Procedure, 1898 (corresponding to Section 397 of the new Code of Criminal Procedure, 1978) are very wide and the High Court or the Sessions Judge can even take up the matter suo motu . The Criminal law is not however, to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and it is for the State to take all the steps necessary for bringing the person who has acted against the social interest of the community to book.
7. On the other hand, Mr. Baleshwar Prasad Gupta learned Counsel appearing for the petitioner, has placed reliance on three Supreme Court decisions in the cases of K. Chinnaswami Reddy v. State of Andhra Pradesh and Anr. . Rajeshwar Prasad Misra v. The State of West Bengal and Anr. A.I.R. 1965 S.C. 1887. and Matukdhari Singh and Ors. v. Janardan Prasad , and a single judge decision of the Court in the case of Nisar Ahmad v. Ekram Ahmad and Ors. .
8. In the Supreme Court case of K. Chinnaswami Reddy (supra), it was held that it is true that it is open to a High Court in revision to set aside an order of aequittal even at the instance of private parties, though the State may not have thought fit to appeal but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been flagrant miscarriage of justice. Similarly, in the Supreme Court decision in the case of Rajeshwar Prasad Misra. (supra), it has held that a retrial may be ordered after setting aside the conviction or acquittal (as the case may be), if the trial already held is found unsatisfactory or it leads to a failure of justice: for example, where a conviction or acquittal was obtained by fraud or a trial for a wrong offence was held or abettors were tried as principal offenders and vice-versa . In the Supreme Court decision in the case of Matukdhari Singh (supra), it has been held that however hesitant the High Court may be to set aside the order of acquittal and to order retrial, it has jurisdiction under the Code to do so, if the justice of the case clearly demands it, and a case of omission from the charge of a serious offence, prima facie disclosed by the evidence, is one of those circumstances in which the power can properly be exercised particularly when the charge for the offence, if framed, would have ousted the Court of trial of its own jurisdiction. In the Single Judge decision of this Court in the case of Nesar Ahmad (supra), it has been held, after placing reliance on the aforesaid Supreme Court decisions in the cases of K. Chinnaswami Reddy (supra) and Matukdhari Singh (supra) that if the trial of a case by a Magistrate was without jurisdiction, it can be interfered in revision even at the instance of a private party.
9. It would thus appear from the aforesaid decisions that a revision at the instance of a private party in a police case in which the State is the prosecutor is not ordinarily maintainable except in very exceptional circumstance, such as, when there is want of jurisdiction or when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. The instant case, in my opinion, is not one of those exceptional cases, and hence, the present revision application at the instance of a private party namely, the informant, Dr. Kamleshwar Prasad Nayak, Vice-Chairman of the Notified Area Committee, is not maintainable when the State, which was the prosecutor, has not chosen to file any such revision application, and more so when the State has not even been made a party in the present application.
10. Some arguments have also been advanced by the learned Counsel appearing for the parties on the point as to whether the learned Chief Judicial Magistrate had or had not the power to differ from the charge-sheet submitted by the police. In this connection, Mr. Gupta, Learned Counsel appearing for the petitioner, has placed reliance on a Supreme Court decision in the case of A. C. Aggrawal, Sub-Divisional Magistrate, Delhi and Anr. v. Mst. Ram Kali and Ors. ., in which it has been held that where from the copies of the reports made to the Magistrate by the Police, it was clear that they disclosed offence under Section 3 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, the Magistrate could not choose to ignore the cognizable offence complained of and merely have recourse to Section 18 of the Act which is a preventive measure as under Section 190(1)(b) of the Code of Criminal Procedure, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. Since the words “may take cognizance” in Section 190 in the context means “must take cognizance.”
11. On the other hand, Mr. Jainarain, learned Counsel appearing for the opposite party, has placed reliance on another decision of the Supreme Court in the case of Abhinandan Jha and Ors. v. Dinesh Mishra in which it has been held that it is not as if that the Magistrate is bound to accept the opinion of the police that there is a case of placing the accused on trial. It is open to the Magistrate to take the view that the facts, disclosed in the report, do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial, and, on either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is charge-sheet submitted by the police, no difficulty whatsoever is caused, because be will have full jurisdiction to take cognizance of the offence under Section 190(1)(b) of the Code. This will be the position when the report under Section 173 is a charge-sheet.
12. Mr. Jainarain has also placed reliance on a Full Bench decision of this Court in the case of Kuli Singh and Ors. v. The State of Bihar and Ors. 1978 B.B.C.J. 400., in which, relying on the aforesaid Supreme Court decision in the case of Abhinandan Jha and Ors. (supra) it has been held that Section 190(1)(b) of the Code of Criminal Procedure empowers a Magistrate to differ from the police report, be it a charge-sheet or be a final report so called, as that power is implicit in that section.
13. In view of my aforesaid finding that the present application is not maintainable at the instance of the private party, namely, the informant Dr. Kamleshwar Prasad Nayak, Vice-Chairman of the Notified Area Committee, when the State has not chosen to file any such revision application, it is not necessary for me to decide this second question. But since arguments have been advanced by the learned Counsel of the parties in this regard and the aforesaid decisions have also been cited by them it seems necessary to take note of them. There doss not appear to be any conflict between the Supreme Court decision in the case of A.C. Aggarwal, Sub.Divisional Magistrate, Delhi and Anr. (Supra) relied on by the learned Counsel appearing for the petitioner on the one hand and the Supreme Court decision in the case of Abhinandan Jha and Ors. (Supra) and the Full Bench decision of this Court in the case of Duli Singh and Ors. (Supra) relied on by the learned Counsel appearing for the opposite party on the other hand, as the Supreme Court decision in the case of A.C. Aggarwal, Sub-Divisional Magistrate, Delhi and Anr. (Supra) is based on the clear finding that the copies of the reports submitted by the police to the Magistrate clearly made out a cognizable offence in which certainly the Magistrate is bound to take cognizance, and this is also the view of the Supreme Court in the case of Abhinandan Jha and Ors. (Supra), wherein it has been observed that if the Magistrate agrees with the report, which is a charge sheet submitted by the police, no difficulty whatsoever, is caused because he will have full jurisdiction to take cognizance of the offence under Section 190(1)(b) of the Code on the basis of the charge sheet. The position in law, therefore is that when a cognizable offence is brought to the notice of Magistrate by the police by filing a Charge-sheet and the Magistrate holds that it discloses a cognizable offence, he is bound to take cognizance; but it is open to the Magistrate to take the view that the facts, disclosed in the report, do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial, and, on either of these grounds the Magistrate will be perfectly justified in declining to take cognizance of an offence irrespective of the opinion of the police, as has been held in the Supreme Court decision in the case of Abhinandan Jha and Ors. (Supra) and in the Full Bench decision of this Court in the case of Dull Singh and Ors. (Supra). Therefore, I do not agree with the contention of the learned Counsel appearing for the petitioner that in the instant case the Magistrate was bound to accept the report of the police and he had no option to differ from it.
14. In view of my aforesaid findings, the application is dismissed.