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

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.

2

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  

3

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.

4

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.

5

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  

6

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  

7

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  

8

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  

9

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.  

10

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  

11

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.

12

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  

13

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  

14

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.

15

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.

16