HIRO SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application in revision by the petitioner for setting aside the order passed on 6th of January, 1978 by the Chief Judicial Magistrate, Saharsa. It appears that this petitioner was also an accused in Saharsa P. S.Case no. 6(1)75 under section 396 of the Indian Penal Code. The Police after investigation submitted charge-sheet against other accused persons but did not send up the petitioner. The charge-sheet was put up before the Chief Judicial Magistrate, Saharsa, who, by his order dated 1st of July, 1977 held that there was prima facie material against the petitioner also in the case diary to put him on trial and as such he directed to issue non-bailable warrant of arrest against him. The petitioner being aggrieved by the said order went in the revision before the Sessions Judge, Saharsa, who by his order dated 29th of November, 1977. set aside the order of the Chief Judicial Magistrate passed on 1st of July, 1977 and sent back the case to him for reconsideration in the light of the observation made by him in his order. When the case again went back to the learned Chief Judicial Magistrate, Saharsa, he, after discussing, in the impugned order, passed on 6th of January, 1978, the order of the learned Sessions Judge, again passed order for issue of non-bailable warrant of arrest against the petitioners. Hence this application in revision by the petitioner.

(2.) Learned counsel, appearing on behalf of the petitioner, has submitted that the learned Chief Judicial Magistrate has shown utter disregard to the order of the learned Sessions Judge and has virtually sat in judgment against the order passed by the learned Sessions Judge when he should have followed the direction given by him. He has also subsisted that the learned Chief Judicial Magistrate has not correctly followed the decision of the Supreme Court in the case of Abinandan Jha v. Dinesh Mishra (AIR 1968 SC 117). In that case the Supreme Court has held that a Magistrate has no power expressly or impliedly to call upon the police to submit charge-sheet. The Supreme Court has further held that the Magistrate is not bound to accept the report of the police and so, if he suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance under section 190 (1) (c) of the Code of Criminal Procedure. Learned counsel for the petitioner has further submitted that the Supreme Court at that time was considering the provision of section 190 of the Code of Criminal Procedure 1898. Now, there has been slight change in that and in section 190 (1) (c) of the new Code the words "or suspicion" have bsen omitted. Formerly under the old Code. Section 190 (1) (c) read as follows :--

(3.) Section 319 (1) of the new Code of Criminal Procedure runs thus :-