Baqar Ali and Others vs The State of U.P.

B.N. Katju, J.—The police investigated a case u/s 307 IPC and Section 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 28-8-1970 and 7-9-1970 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 ADM (J), Budaun by the order of the Munsif-Magistrate dated 3-11-1971 and the ADM (J), Budaun proceeded with the case. On 8-12- 1971 the applicants filed an application before the ADM (J), Budaun to the effect that the Munsif-Magistrate did not have power to take cognizance of the case u/s 190(1)(c) Code of Criminal Procedure and was not entitled to proceed with the case after the police had submitted a final report and the proceedings in the Court of the Munsif-Magistrate and in the Court of the ADM (J), Budaun against the applicants were illegal. The application of the applicants was rejected by the ADM (J) by his order dated 13-1-1972 The applicants filed Criminal Revision No. 18 of 1972 against the aforesaid order which was dismissed by the 2nd Civil and Sessions Judge, Budaun by his order dated 29-5-1972. The applicants have now come up in revision to this Court.

A letter dated 5-5-1972 was sent by the Civil and Sessions Judge, Budaun to the District Magistrate, Budaun to find out whether the Munsif-Magistrate, Budaun was empowered by the State Government on 28-8-1970 to take cognizance of an offence u/s 190(1)(c) Code of Criminal Procedure and the reply of the ADM (J), Budaun dated 12-5-1972 shows that the Munsif-Magistrate, Budaun was not empowered on 28-8-1970 to take cognizance of any offence u/s 190(1)(c) Code of Criminal Procedure. The learned Judge however held in his order dated 29-5-1972 that the Munsif Magistrate took cognizance of the offence alleged to have been committed by the applicants u/s 190(1)(b) Code of Criminal Procedure.

A plain reading of Section 190(1)(b) Code of Criminal Procedure 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 AWR 826 in which it was held :

If a charge-sheet is submitted by the police, it is open to the Magistrate either to take cognizance u/s 190(1)(b) or to refuse to take cognizance. 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 u/s 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 u/s 190(1)(c) and not u/s 190(1)(b) Code of Criminal Procedure.

The finding of the learned Judge that the learned Magistrate was empowered to take cognizance of the offence against the applicants u/s 190(1)(b) Code of Criminal Procedure is therefore clearly illegal. The learned Magistrate could take cognizance of the offence against the applicants u/s 190(1)(c) Code of Criminal Procedure after the police had submitted a fin a 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 u/s 190(1)(c) Code of Criminal Procedure. He was, therefore, not entitled to take cognizance of the offence against the applicants after the police had submitted a final report either u/s 190(1)(b) or 190(1)(c) Code of Criminal Procedure. The proceedings against the applicants are therefore, clearly illegal.

This application is accordingly allowed and the order of the ADM (J), Budaun dated 13-1-1972 and the order of the Civil and Sessions Judge, Budaun dated 25-9-1972 are set aside and the proceedings against the applicants pending in the Court of the ADM (J), Bu daun in case no. 116 of 1970 (State v. Baqar Ali and others) are quashed.