Uma Shankar Singh Vs.
State of Bihar & ANR.  INSC 727 (9 September 2010)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION(CRL.) No.5123
ALTAMAS KABIR, J.
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 2 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.
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.
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.
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
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
4 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.
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.
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.
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.
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 7 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
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 8 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.
support of the said proposition reliance was placed on the decision of this
Court in Raj 9 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.
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 10 is no
intermediary stage between committal under Section 209 Cr.P.C. and Section 319
Cr.P.C. for the aforesaid purpose.
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.
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.
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 12 account the statement of witnesses
made under police investigation and issue process.
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.
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
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 14 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.
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 15 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.
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
Special Leave Petition is, therefore, dismissed in the light of the aforesaid