LexRAGHUBANS DUBEY versus STATE OF BIHAR
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A RAGHUBANS DUBEY v. STATE OF BIHAR January 19, 1967 423 B [M. HIDAYATULLAH, S. M. SIKRI AND C. A. VAIDIAL!NGAM, JJ.] c D E ' G H Code of Criminal Procedure (Act 5 of 1898), ss. 190(1)(h) and 201-Magistrate taking cognizance of ofjenc.e on police report-Jurisdic- tion to proceed against accused not sent up by police. Discharge of accused-Whether possible, when accused not included jn the charge-sheet. The police investigated into a complaint against the appellant and others, accepted the appellant's plea of alibi and filed a charge sheet against the others for offences, under ss. 302, 201 and 149 I.P.C., before the Sub-Divisional Magistrate. The Magistrate recorded that the appellant was discharged and transferred the case for enquiry to another Magistrate, who. after examining two witnesses, ordered the issue of a non-bailable warrant against the appellant, for proceeding against him along with the other accused unde'r s. 207.A Cr. P.C. The order was confirmed by the Sessions Court and High Court. In appeal to this Court, HELD: (I) There could be no discharge of the appellant when he was not included as an accused in the charge-sheet submitted by the police.. [ 426 CJ (2) The appellant could be proceeded against along with the other accused under s. 207-A Cr.P.C. (426 BJ The Sub-divisional Magistrate had taken cognizance of the offence upon the written repon of the police, that is, under s. 190(1) (b), Cr. P.C. Therefore, the proceeding was instituted under s. 207(a) and not under s. 207(b) Cr.P.C. The cognizance, however, was of the offence only and not of the offenders. Having taken cognizance of the offence. he had to find out who the real offenders were, and if he came to the con- clusion that a,.,an from the persons sent up by the police some other persons were involved. It was his duty to proceed against those persons also. The, SURlmoning of the appellant as an additional accused was part of the proceeding initiated by his taking cognizance of the offence. (427 B-C, 428 C-D] l'ravin Chandra Mody v. State of A.P. [1965] 1 S.C.R. 269, followed. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 189 of 1964. Appeal by special leave from the judgment and order dated April 10, 1964 of the Patna High Court in Criminal Revision No. 896 of 1961. Danial Lat(fi and K. K. Sinha, for the appellant. R. N. Sachthey, for the respondent. 424 SUl'JlBMI! OOUllT JlBPORTS [1967] 2 S.C.R. The Judgment of the Court was delivered hy Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Judicature of Patna dismiss- ing Criminal Revision No. 896 of 1961 filed by the appellant Raghubans Dubey. The relevant facts for appreciating the points raised before us are as follows :- The appellant was one of the 15 persons mentioned as assailants in the First Information Report dated July 29. 1959, lodged by one Raja Ram Sah. The police investigated the case and during the investigation the appellant set up an alibi. The police accepted the alibi and did not include his name as an accused in the final report under s. 173 of the Code of Crimi- nal Procedure. His name was, however, mentioned in column No. 2 of the Charge Sheet under the heading "not sent up"'. On April 5, 1961, the Sub-divisional Magistrate passed the following order : "C. S. No. 12 dated 23-3-61 u/s 149/302/201 I. P. C. received against the accused noted in col. 3 and 4 of C. S. Cog. taken u/s 149/302/201 I. P. C. and case transferred to Sri L. P. Singh Magl. ....... class for enquiry under Chapter XVIII Cr. P. C. Accused not sent up for trial is discharged." On transfer, Shri L. P. Singh, Magistrate, took up the hearing of the case on May 2, 1961. In the meantime a peti- tion had been filed on April 11, 1961, praying that the appel- lant be summoned hy the Magistrate. On May 2. 1961, Jagan- nath Sao, P. W. I, was examined and in his examination-in- chief he implicated the appellant as one of the persons who were present in the mob which is alleged to have killed Rupan Singh. On the same day Mahesh Sao, P. W. 2, also implicated the appellant in his examination-in-chief. It appears that the coun- sel for Raja Ram Sah, the person who lodged the F.l.R., re- quested the Magistrate to summon the appellant as well for trial. as prayed for in the petition dated April II, 1961, The Magis- trate, after hearing the Assistant District Prosecutor as wel
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