BABOO Vs. STATE

JUDGEMENT

(1.) THE only point in this revision is whether where the police has submitted a final report in a case exclusively triable by the court of Session a Magistrate can straightaway take cognizance and summon the accused. Learned counsel for the applicant has relied upon a number of decisions. In Ram Chandra v. State of U. P., 1970 AWR 826 a Division Bench of this Court interpreted the Supreme Court decision in Abhinandan Jha v. Dinesh Mishra, AIR 1968 S. C. 117 to lay down that in case the Magistrate was not inclined to agree with a final report of the police he could take cognizance but this had to be u/Sec. 190 (1) (c) CrPC. In Krishna Kant Tewari v. State of U. P., 1980 AWC 513 a learned single Judge of this Court following th?s aforesaid Division Bench held that in case of a final report the Magistrate could take cognizance only u/Sec. 190 (1) (c) but the words "or suspicion" in Sec. 190 (1) (c) having been dropped in the new Code such cognizance was limited to only two types of cases viz. (1) information received from any person other than a police officer e.g. a protest petition filed by the aggrieved party or some one else, and (2) upon his knowledge that such offence has been committed. THE learned Judge went on to quash the order of the Magistrate who had proceeded to Cake cognizance on the final report without any other material before him. In Sahu Ram v. State of U. P., 1978 ACC 150 another learned single Judge held that in a complaint case regarding an offence exclusively triable by the Court of Session In which evidence u/Sec. 202 CrPC had been taken the Magistrate could not commit the case without calling upon the complainant to produce all his witnesses and examine them on oath.

(2.) WITH great respect the Division Bi;nch decision in Ram Chandra's case (supra) must be held to be no longer good law. In Abhinandan Jha's case (supra) the Supreme Court clearly laid down that if the Magistrate disagreed with the final report submitted by the police he could direct further investigation u/Sec. 156 (3) CrPC and if after this further investigation the police again submitted a final report he could take cognizance u/Sec. 191 (b) CrPC. The relevant observations are as follows :-