JANESHWAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned counsel for the State.

(2.) 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 sum -moning the petitioner could only be the stage under Section 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 V/s. The State of Bihar, 2007 2 PLJR 825 was relied upon with emphasis that the said judgment was passed after considering several judgments of the Apex Court.

(3.) 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 under Section 190 Cr. P.C. but on the basis of scope of power under Section 319 Cr.P.C. and appropriate stage for its exercise as appearing from judgment of the Supreme Court in the case of Ranjit Singh V/s. The State of Punjab, 1998 7 SCC 149 and in the case of Kishori Singh & Ors. V/s. State of Bihar, 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 under Section 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 under Section 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 charge -sheeted. 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 Judge 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 under Section 319 Cr. P.C. does not take away power of the Magistrate to take cognizance after differing with the opinion of the police.