MANOHAR MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application in revision by the petitioners against the order passed on 22.11.1978 .by the Chief Judicial Magistrate, Dumka, in C. R. Case No. 480 of 1974 taking cognizance against the petitioners.

(2.) Learned counsel for the petitioners has submitted that the impugned order passed on 22.11.1978 by the learned Chief Judicial Magistrate is illegal and fit to be set aside, as, according to him, the impugned order itself shows that the learned Magistrate had no jurisdiction to take cognizance in this case and he had taken cognizance against the provision of law. It appears that an occurrence had taken place in respect of which first information report was lodged by the informant and a case was registered by the police under sections 448, 324 and 307 of the Indian Penal Code. The Investigating Officer investigated the case and examined witnesses. It appears from the impugned order that the Inspector of Police supervised the case and ordered the Investigating Officer to submit final form 'mistake of law' in the case The learned Chief Judicial Magistrate was of the opinion that a prima facie case under sections 307, 324 and 451 of the Indian Penal Code was made out against the petitioners and he was at a loss to understand as to how the Inspector of Police had directed to submit final report "mistake of law" in the can. So he did not accept the final report submitted by the police. On the contrary, he took cognizance for the aforesaid offences as, according to him, there was sufficient material on the record for the same.

(3.) Mr. Ghosal, learned counsel for the petitioners has submitted that in a police case when the police after investigation submits final report "mistake of law," the learned Magistrate could not take cognizance. He has referred to the provisions of section 190 of the Code of Criminal Procedure, 1973 and has submitted that under section 190 (1) (c) of the Code of Criminal Procedure, 1898, the learned Magistrate could take cognizance even on suspicion, but now in view of the fact that the word 'suspicion' has been deleted from section 910(1)(c)of the Code of Criminal Procedure, 1973, the learned Magistrate is left with three circumstances only for taking cognizance, namely, (i) on a complaint, (ii) upon the police report, and (iii) upon information received from any person other than a police officer or upon his own knowledge that an offence has been committed, but not on mere suspicion as the word 'suspicion' in the new Code has been omitted. In support of this argument he has referred to a Bench decision of this Court in the case of Kailash Pandey and others v. Bharat Pandey, (1977 BBCJ 722) particularly to the following observations :