Janeshwar Singh vs State of Bihar

Heard learned counsel for the petitioner and learned counsel for the State. The petitioner alongwith some others was made an accused in Barun P.S. Case No. 118/06. After investigation police submitted charge-sheet against other accused persons but not against the petitioner. The learned Chief Judicial Magistrate, Aurangabad differed with the opinion of the police and took cognizance of the offence vide order dated 9.1.2007 and decided to proceed even against the petitioner.

Before the learned Single Judge, it was submitted on behalf of the petitioner that Magistrate had no power to proceed against the petitioner when he was not charge-sheeted by the police and the proper stage for summoning the petitioner could only be the stage u/s 319 of the Code of Criminal Procedure (for short ''Cr.P.C.'') if some materials come against him by way of evidence in the trial. In support of such submission, judgment of a Single Judge of this Court in the case of Ram Nandan Singh @ Ram Nandan Yadav Vs. State of Bihar and Another was relied upon with emphasis that the said judgment was passed after considering several judgments of the Apex Court.

On going through the judgment in the case of Ram Nandan Singh (supra) it is noticed that the said case was decided not on the basis of power available to the Magistrate u/s 190 Cr.P.C. but on the basis of scope of power u/s 319 Cr.P.C. and appropriate stage for its exercise as appearing from judgment of the Supreme Court in the case of Ranjit Singh Vs. State of Punjab, and in the case of Kishori Singh & Ors. vs. State of Bihar reported in (2004) 13 SCC 11. The judgment in the case of Kishori Singh (supra) while following three Judges decision in the case of Ranjit Singh is clearly an authority on the proposition that power u/s 319 Cr.P.C. can be exercised only on the basis of evidence collected during trial but not on the proposition that at the stage of cognizance a Magistrate cannot differ with the opinion of the Police so as to proceed even against persons not charge-sheeted by the Police. No doubt, prima facie, this judgment creates an impression that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused persons, but not charge-sheeted as per final report filed by the police u/s 173 Cr.P.C. But on careful perusal of facts of that case it is clear that on 10.6.1997 the Magistrate took cognizance only against the charge-sheeted accused without differing with the opinion of the Police in respect of three appellants of that case who were not chargesheted. Later, on 22.10.1997 the Magistrate proceeded to issue warrant even against those three appellants. Clearly, since the stage of cognizance was over, the Magistrate had no jurisdiction left in him as per three Judges Bench judgment in the case of. Ranjit Singh. The ratio flowing from the case of Kishori Singh cannot be correctly appreciated if the stage at which the Magistrate passed the impugned order is not kept in mind. Thus, there is no scope for confusion that power of the Sessions Court u/s 319 Cr.P.C. does not take away power of the Magistrate to take cognizance after differing with the opinion of the police.

The power of the Magistrate lo take cognizance regardless of the opinion of the police in the final report is clear from a catena of judgments of the Supreme Court, some noticed by the Hon''ble Single Judge in the order referring this case to a larger Bench, e.g. (1) Abhinandan Jha and Others Vs. Dinesh Mishra, , and (ii) H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), . In Abhinandan Jha''s case the following passage is worth quoting :-

"The functions of the Magistrate and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190 (1)(c)".

The Apex Court, in a recent case of Dinesh Dalmia vs. CBI, reported in (2008) 1 SCC 36 has reiterated the law. The main issue in this case related to remand of accused and right to bail but the Apex Court considered also the Magistrate''s power to take cognizance on sub-mission of report u/s 173 Cr.P.C. and held that even when investigation re mains pending against some persons and offence is shown not to have been made out against some persons as per the charge-sheet, depending on the nature of the charge-sheet/police report cognizance may be taken against such persons as well for which Magistrate has power u/s 190 of Cr.P.C. In another recent case of Minu Kumari and Another Vs. The State of Bihar and Others, the Apex Court was examining the extent and nature of power u/s 482 of Cr.P.C. available to the High Court but in course of the same the Apex Court also considered the issue relating to Magistrate''s power to take cognizance of offence when the report forwarded by police showed that no case was made out against the concerned accused. After noticing several earlier judgments of the Supreme Court including the case of Abhinandan Jha and Others Vs. Dinesh Mishra, , the Supreme Court came to the conclusion that there is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police and the power to take cognizance contrary to opinion of the police is available u/s 190(1)(c) of Cr.P.C.

This Court has also consistently followed the aforesaid view in several cases including in the case of Nathuni Yadav, Kishori Sahu @ Kishori Sah and Prarikshan Yadav @ Ram Parikashan Yadav Vs. The State of Bihar and Ram Bhajan Das, in which several judgments of the Apex Court and this Court were considered. Further, the attention of Hon''ble Single Judge was not drawn to an earlier Single Judge judgment of this Court dated 11.8.2005 in the case of Umesh Roy and Others Vs. The State of Bihar and Another, in which exactly similar argument as advanced in the case of Ram Nandan Singh (supra), was considered and after proper consideration of relevant Supreme Court judgments including, in the case of Kishori Singh (supra) the law was clearly propounded that Magistrate, at the stage of cognizance could differ from opinion of the Police and proceed against even those accused who may not have been charge-sheeted by the Police.

Hence with due respect to the learned Single Judge who decided the case of Ram Nandan Singh vs. The State of Bihar, we find ourselves in disagreement with the view that the Magistrate cannot issue process against a person who has not been charge-sheeted by the police. We are constrained to hold that the said judgment does not lay down the law correctly and the relevant provision of the Cr.P.C. and several judgments of the Apex Court and this Court indicated above were not taken into consideration in that judgment. Following the settled law discussed above, we find no illegality in the order of cognizance passed by learned Chief Judicial Magistrate, Aurangabad vide order dated 9.1.2007. Hence, this quashing application is found to be without any merit. It is dismissed accordingly.