REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION(CRL.) No.5123 of 2009
UMA SHANKAR SINGH ... PETITIONER
Vs.
STATE OF BIHAR & ANR. ... RESPONDENTS
J U D G M E N T
ALTAMAS KABIR, J.
1. On 17th February, 2000, one Vijay Singh,
brother of Bharat Singh (deceased) and
Damodar Singh, who was an independent
candidate in the elections to the Bihar
Assembly, lodged a First Information Report
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with Maharajganj Police Station which was
recorded as Maharajganj P.S. Case No.14 of
2000. In the said F.I.R. it was indicated
that Damodar Singh, the informant’s brother
was contesting the elections to the Bihar
Assembly as an independent candidate. While
the polling of votes was in progress, Bharat
Singh was sitting in the Election office when
he received information that bogus votes were
being cast at a particular booth and upon
hearing a bomb explosion at about 11.30 a.m.,
he proceeded to the place where the incident
was taking place. According to the F.I.R.
version, the informant reached the place in a
jeep while Bharat Singh followed him on a
motorcycle. On reaching the place they were
informed that a boy had sustained injuries
and had been rushed to the Maharajganj State
Hospital for treatment.
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2. When they were leaving the hospital premises,
Uma Shankar Singh who was a candidate of the
Samata Party in the Assembly election, and
his son Jitendra Swami, accompanied by some
unknown persons armed with different weapons,
arrived at the place of occurrence and on the
orders of Uma Shankar Singh, his son Jitendra
Swami pulled down Bharat Singh from his
motorcycle, pushed him into his car and drove
out to an unknown destination.
3. Initially, the FIR was lodged under Section
364/34 IPC, but after the body of Bharat
Singh was found, Sections 302, 291/34 IPC and
Section 27 of the Arms Act were also added.
The matter created a lot of turmoil which
resulted in the investigation being
transferred to the CID. The informant, Vijay
Singh, becoming unnerved by the said decision
of the State Government, challenged the same
in Crl. W.J.C. No.288 of 2000, which was
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disposed of by the High Court on 9th April,
2001, upon observing that the matter appeared
to be a fight between two political
personalities and when investigation had
already been completed by one agency and was
also to be completed by the CID, the question
would arise as to whether the investigation
report under Section 173(2) Cr.P.C. would
have to be filed both by the first
investigating agency and also by the CID.
The High Court directed the CID and the
Superintendent of Police, Siwan, to submit
their reports to the concerned Chief Judicial
Magistrate within two months from the date of
the order and upon such report being
submitted, the Chief Judicial Magistrate was
directed to proceed according to law after
considering both the reports and the case
diary.
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4. By virtue of the order of the High Court,
investigation continued both by the CID and
the local police and it was decided to file a
report in final form against the Petitioner,
though some other accused were charge-
sheeted. However, after examining the
materials in the case diary, the Chief
Judicial Magistrate differed with the Final
Report submitted by the investigating agency
to take cognizance against Jitendra Swami and
some other accused persons.
5. This led the Petitioner to file an
application under Section 227 Cr.P.C. for
discharge from the case. The said application
was taken up for consideration by the First
Additional Sessions Judge, Siwan, who by his
order dated 9th March, 2007, rejected the
petitioner’s prayer for discharge under Section
227 Cr.P.C. and fixed a date for framing of
charge.
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6. The Petitioner thereupon filed Crl. Misc.
Case No.18909 of 2007 in the Patna High Court for
quashing the order passed by the First Additional
District and Sessions Judge, Siwan, on 9th March,
2007, rejecting the Petitioner’s prayer for
discharge from the case. The High Court dismissed
the Crl. Misc. Case vide its order dated 12th May,
2009. This Special Leave Petition was filed on
17th July, 2009, against the said judgment and
order of the High Court.
7. On behalf of the Petitioner it was urged that
when he was not named as an accused in the
charge-sheet filed by the investigating agency,
the Magistrate could not have taken cognizance as
far as he was concerned and the trial court
should have waited till the stage of Section 319
Cr.P.C. if at all the Petitioner was to be
arrayed as an accused. Mr. P.S. Mishra, learned
Senior Advocate, reiterated the oft-repeated
saying that cognizance is taken of an offence and
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not the offender. Mr. Mishra submitted that the
case was also investigated by the C.I.D. on the
directions of the High Court and, although, the
alleged offence was triable by a Court of
Session, the learned Magistrate erroneously took
cognizance thereof.
8. Mr. Mishra urged that one of the modes of
taking cognizance of an offence by the Magistrate
under Section 190 Cr.P.C. is upon a police report
of facts constituting the offence. Mr. Mishra
submitted that prior to the enactment of the Code
of Criminal Procedure, 1973, which replaced the
Code of Criminal Procedure, 1898, if the
Magistrate disagreed with the Final Report filed
by the investigating agency, he was at liberty to
hold a separate enquiry and to take cognizance
thereafter. Under the new Code, however, such a
procedure was eliminated by virtue of the
amended provisions of Section 209 which made it
quite clear that when in a case instituted on a
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police report or otherwise, the accused appears
or is brought before the Magistrate who is of the
view that the offence is triable exclusively by
the Court of Session, he shall, after complying
with the provisions of Sections 207 and 208, as
the case may be, commit the accused to the Court
of Session. It was urged that the Magistrate was
left with no choice to hold an enquiry but to
make an order of commitment when the facts
disclosed an offence triable by the Court of
Session. In other words, if the Final Report
under Section 173(2) Cr.P.C. exonerated an
accused, there was no scope for the Magistrate to
hold an inquiry for the purpose of taking
cognizance, but to wait for the stage of Section
319 Cr.P.C. if at all cognizance was to be taken
in respect of such accused on material that may
have surfaced during the trial.
9. In support of the said proposition reliance
was placed on the decision of this Court in Raj
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Kishore Prasad vs. State of Bihar [(1996) 4 SCC
495], wherein this Court when confronted with a
similar question held that in order to apply
Section 319 Cr.P.C. against any person other than
the accused, it would depend on the evidence
recorded in the course of any inquiry or trial
and that proceedings before a Magistrate under
Section 209 Cr.P.C. are not trial proceedings nor
were they ever meant to be.
10. Reference was then made to a decision of a
Three Judge Bench of this Court in Ranjit Singh
vs. State of Punjab [(1998) 7 SCC 149], wherein
the Hon’ble Judges took the view that when a case
is committed to the Court of Session under
Section 209, the Court of Session has no
jurisdiction to include a new person as accused
before evidence was led on behalf of the
prosecution and that there was no power other
than the power conferred under Section 319
Cr.P.C. by which the Court of Session could join
a new person as accused. It was held that there
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is no intermediary stage between committal under
Section 209 Cr.P.C. and Section 319 Cr.P.C. for
the aforesaid purpose.
11. Mr. Mishra submitted that the views expressed
in Ranjit Singh’s case (supra) were contrary to
those expressed by this Court in the case of
Kishun Singh & Ors. vs. State of Bihar, [(1993) 2
SCC 16], where, although, 20 persons had been
named in the F.I.R., the Magistrate had committed
18 to the Court of Session under Section 209
Cr.P.C. to stand trial. On an application made
under Section 319 Cr.P.C. indicating the
involvement of the other two accused as well, a
prayer was made that they should also be summoned
and arraigned before the court as accused persons
along with the 18 other accused already named in
the charge-sheet. Despite objections raised on
behalf of the said two persons, the Sessions
Judge, in exercise of his discretion, added the
said persons as accused along with the 18 others.
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The criminal revision preferred from the order of
the learned Sessions Judge was dismissed by the
High Court. This Court while granting special
leave held that although the stage of Section 319
had not been reached, on the materials available,
the Sessions Judge was within his jurisdiction in
taking cognizance against the said two persons
under Section 193 of the Code.
12. The same question once again fell for
consideration in Kishori Singh & Ors. vs. State
of Bihar & Anr. [(2004 (13) SCC 11], where the
decision rendered by this Court in Ranjit Singh’s
case (supra) was followed, although, another
decision in the case of India Carat Pvt. Ltd. vs.
State of Karnataka & Anr. [(1989) 2 SCC 132], was
also cited wherein another Bench of three Judges
of this Court had held that despite the police
report that no case had been made out against the
accused, the Magistrate can take cognizance of
the offence under Section 190(1)(b), taking into
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account the statement of witnesses made under
police investigation and issue process.
13. Ultimately, the case of Dharampal & Ors. vs.
State of Haryana & Anr. [(2004) 13 SCC 9], came
up for consideration before a Bench of two Judges
when on account of the different views expressed
by different Benches of this Court, the case was
directed to be heard by a three Judge Bench.
After considering the various decisions in
connection with the said issue, the three Judge
Bench observed that prima facie it did not think
that the interpretation reached in Ranjit Singh’s
case (supra) was correct and that the law was
clearly enunciated in Kishun Singh’s case
(supra). Further, having regard to the fact that
the decision in Ranjit Singh’s case (supra) was a
three-Judge Bench, the learned Judges directed
that the matter be placed before the Hon’ble the
Chief Justice of India for placing the matter
before a larger Bench.
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14. Mr. Nagendra Rai, learned Senior Advocate
appearing for some of the respondents, on the
other hand, submitted that the question referred
to the larger Bench in Dharampal’s case (supra)
is not really material for a decision in this
case where the fact situation was different. Mr.
Rai urged that the law was well-settled that the
Magistrate was not bound to accept the Final
Report filed by the investigating authorities
under Section 173(2) Cr. P.C. and was entitled to
issue process against an accused even though
exonerated by the said authorities, without
holding any separate enquiry, on the basis of the
Police Report itself.
15. There is substance in Mr. Rai’s submission
that for a decision in the facts of the case, it
is not necessary to wait for the outcome of the
result of the reference made to a larger Bench in
Dharampal’s case. The reference is with regard
to the Magistrate’s power of enquiry if he
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disagreed with the Final Report submitted by the
investigating authorities. The facts of this case
are different and are covered by the decision of
this Court in the case of India Carat Pvt. Ltd.
(supra) following the line of cases from
Abhinandan Jha vs. Dinesh Mishra (1967) 3 SCR 668
onwards. The law is well-settled that even if the
investigating authority is of the view that no
case has been made out against an accused, the
Magistrate can apply his mind independently to
the materials contained in the police report and
take cognizance thereupon in exercise of his
powers under Section 190(1)(b) Cr.P.C.
16. That is precisely what has happened in the
present case. In the instant case the
investigation had been handed over to the C.I.D.
and both the C.I.D. and the local police had
submitted their reports in final form exonerating
the petitioner of the allegations made against
him in the F.I.R. However, the Chief Judicial
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Magistrate, Siwan, took cognizance of the offence
under Section 302/379 IPC and Section 27 of the
Arms Act against the petitioner. This is not a
case where the Magistrate took recourse to any
further inquiry but took cognizance on the police
report itself, which he was entitled to do under
Section 190(1)(b) Cr.P.C.
17. Even otherwise, the Petitioner thereafter
filed an application for discharge before the 1st
Additional District and Sessions Judge, Siwan, in
Sessions Trial No.281 of 2006, but such prayer
under Section 227 Cr.P.C. was dismissed and a
date was fixed for framing of charge. We have
been informed that charges have since been framed
against the petitioner which has rendered the
present proceedings infructuous and the
Petitioner’s remedy, if any, will no longer be
available therein.
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18. The Special Leave Petition is, therefore,
dismissed in the light of the aforesaid
observations.
…………………………………………J.
(ALTAMAS KABIR)
…………………………………………J.
(A.K. PATNAIK)
New Delhi
Dated: 09.09.2010.