BAQAR ALI Vs. STATE

JUDGEMENT

(1.) THE police investigated a case under sec. 307, I. P. C. and sec. 25, Arms Act against the applicants and submitted a final report in the court of the Munsif-Magistrate, Budaun. THE Munsif-Magistrate, did not accept the final report and by his orders dated 28-8-70 and 7-9-70 ordered that the case will proceed against the applicants and summoned the applicants and proceeded with the case. THE case was subsequently transferred to the court of the A.DM. (J.), Budaun by the order of the Munsif-Magistrate dated 3-11-71 and the A.D.M. (J.), Budaun proceeded with the case. On 8-12-71 the applicants filed an application before the A. D. M. (J.), Budaun to the effect that the Munsif-Magisirate did not have power to take cognizance of the case under sec. 190(1) (c), Cr. P. C. and was cot entitled to proceed with the case after the police had submitted a final report and the proceedings in the court of the Munsit-Magistrate and in the court of the A. D. M. (J.), Budaun against the applicants were illegal. THE application of the applicants was rejected by the A. D. M (J.) by his order dated 13-1-72. THE applicants filed Criminal Revision No. 18 of 1972 against the aforesaid order which was dismissed by the 2nd Civil & Sessions Judge, Budaun by his order dated 29-5-72. THE applicants have now come up in revision to this court. A letter dated 5-5-72 was sent by the Civil & Sessions Judge, Budaun to the District Magistrate, Budaun to find out whether the Munsif-Magistrate, Budaun was empowered by the State Government on 28-8-70 to take cognizance of an offence under sec. 190 (1)(c), Cr. P.C. and the reply of the A.D.M. (J.), Budaun dated 12-6-72 shows that the Munsif-Magistrate, Budaun was not empowered on 28 8-70 to take cognizance of any offence under sec. 190 (1)(c), Cr. P. C. THE learned Judge however held in his order dated 29-5-72 that the Munsif-Magistrate took cognizance of the offence alleged to have been committed by the applicants under sec. 190 (1) (b), Cr. P. C. A plain reading of sec 190 (1) (b), Cr. P. C. indicates that a Magistrate can take cognizance of an offence under this sub-section only upon a report in writing made by a police officer of facts which discloses the commission of an offence. If the report does not disclose the commission of an offence but on the other hand is a final report showing that there is neither sufficient evidence nor reasonable ground of suspicion that the accused has committed an offence, cognizance of the offence cannot be taken under this sub-section. I am supported in my view by a decision of this court in the case of Ram Chandra v. State of U P. (1970 A.L.J. 1361) in which it was held : "If a charge-sheet is submitted by the police it is open to the Magistrate either to take cognizance under sec. 190(1) (b) or to refuse to take cosnizance. Likewise. if a final report is submitted by the police, it is open to the Magistrate to accept the final report and drop the matter or to take cognizance under sec. 190 (1) (c). It is, therefore, clear that, in the present case, it was open to the Magistrate to take cognizance even though the police had submitted a final report. But cognizance could be taken only under sec. 190 (1) (c) and not under sec. 190 (1) (b), Cr. P. C." THE finding of the learned judge that the learned Magistrate was empowered to take cognizance of the offence against the applicants under sec. 190 (1) (b), Cr. P. C. is therefore clearly illegal. THE learned Magistrate could take cognizance of the offence against the applicants under sec. 190 (1) (c), Cr. P. C. after the police had submitted a final report if he was empowered to do so. But, in the present case, it is clear that he was not empowered to take cognizance of an offence under sec. 190 (1) (c), Cr. P. C. He was, therefore, not entitled to take cognizance of the offence against the applicants after the police had submitted a final report either under section 190 (1)(b) or 190 (1) (c), Cr. P. C. THE proceedings against the applicants are therefore, clearly illegal. This application is accordingly allowed and the order of the A. D. M. (J.), Budaun dated 13-1-72 and the order of the Civil & Sessions Judge, Budaun dated 25-9-72 are set aside and the proceedings against the applicants pending in the court of the A D. M. (J.), Budaun in case no. 116 of 1970 (State v. Baqar All and others) are quashed.