The judgment establishes the principle that a Magistrate has the power to independently form a prima facie view on the facts emerging from the investigation and take cognizance of an offence, regardless of the police report's conclusion.

ORDER

1. The Special Judge, Vigilance, Bhubaneshwar, by order dated 20-9-1999, held that in face of existence of prima facie case under Section 13(1)(e) of the Prevention of Corruption Act, 1988 (for short "the Act"), punishable under Section 13(2) of the Act, charge against the respondent-accused under the said section deserves to be framed. The above order framing charge has been quashed by the High Court by the impugned common judgment rendered on writ petition (OJC No. 12753 of 1999) and Crl. Misc. Case No. 5021 of 1999 filed under Section 482 CrPC by the accused. The High Court allowing both the petitions has further held that the order taking cognizance has become non est. The State is in appeal on grant of special leave.

2. In order to appreciate the respective contentions, it is necessary to notice, in brief, the facts as under:

For the period from 1980 to the end of 1989, the respondent was a Minister holding different portfolios from time to time. On 29-9-1990, a case under, Section 13(2) read with Section 13(1) (e) of the Act for acquisition of disproportionate assets was registered against the respondent. The period under consideration was from June 1980 to November 1989. On 26-3-1991, on completion of investigation, a charge-sheet for possession of disproportionate assets to a tune of about Rs 14 lakhs was submitted against the respondent. On 27-3-1991, the Special Judge, Bhubaneshwar, took cognizance. On the Special Court coming into existence, again cognizance was taken on 5-7-1993 by the Presiding Judge of the Special Court. A petition filed by the accused on 25-7-1997 seeking reinvestigation was rejected by the Special Court on 3-1-1998. It seems that in July 1998, when the respondent was again a Minister, he made a representation to the Inspector General of Police, Vigilance, to consider his income from sale of paddy which he received during the period under investigation and sought on that basis reinvestigation. On the basis of the said representation, an application was made by the investigating officer before the Special Judge seeking orders for reinvestigation. The Special Judge on the said application ordered, "It is open to the 10 to do so." As a result of reinvestigation/further investigation, the investigating officer submitted final report dated 29-9-1998 concluding that:

"From the above reinvestigation it is found that Mr H. Khan has acquired total assets during the check period of Rs 15,48,863.84 as per Annexure I, incurred expenditure during the check period of Rs 4,67,213.27 as per Annexure II and his total income during the check period comes to Rs 19,69,057.22 as per Annexure III. So the total disproportionate assets acquired by Mr H. Khan is computed to Rs 47,029.89, which is 2.38% of his total income.

From the above facts it is ascertained that there is no material to prove the charge of acquisition of disproportionate assets by Shri H. Khan during the check period and as such this case is submitted to the court with a prayer to accept it as final report true insufficient evidence (sic) under Section 13(2) read with Section 13(I) (e) of the PC Act, 1988."

3. The Special Judge, in terms of the order dated 20-9-1999, after noticing the background including the submission of the first and the second report and also after examining the law on the subject, came to the conclusion of existence of the prima facie case requiring framing of charge as above-noticed. The learned Judge did not accept the conclusion in the second report that there is no material to prove the charge of acquisition of disproportionate assets by the accused during the check period.

4. The law as to the power of the Magistrate not to accept the final report and ignore the conclusion arrived at by the investigating officer on independent application of mind is well settled. A Magistrate has ample power to take cognizance of an offence even when the police report is to the effect that the investigation has not made out any offen