A Magistrate has the power to take cognizance against an accused person under Section 190(1)(b) of the CrPC even when the police have filed a final report in favor of that person.

JASRAJ CHOPRA, J.

( 1 ) THIS petition under section 482, Criminal Procedure Code has been filed against the revisional order of the learned Sessions Judge, Sri Ganganagar dated 31/8/1988 whereby he has maintained the order of the learned Addi. Munsif and Judicial Magistrate, Sri Ganganagar dated 14/7/1987 taking cognizance against the accused-petitioner Jogendera Singh for the offences under sections 307, 326, 379, and 430/34, I. P. C.

( 2 ) THE facts necessary to be noticed for the disposal of this petition briefly stated are that complainant Baldeo Singh lodged a report at P. S. , Chunavadh that on 23/9/1986 at about 5 p. m. , when it was his turn to take water from the canal to irrigate his field, accused-petitioner Jogendra Singh alongwith his companions forcibly diverted the water course towards their field, which was objected by complainant Baldeo Singh, whereupon, Charan Singh and Nakshatra Singh caught hold of his hands and accused Jogendra Singh inflicted injuries on his head and neck etc. After usual investigation, the police filed a challan against accused Charan Singh and Nakshtra Singh but it did not file challan against accused Jogendra Singh, Complainant Baldeo. Singh filed a protest petition for taking cognizance against accused Jogendra Singh. Till concerned Magistrate being on leave, the learned Addi. Munsif and Judicial Magistrate Sri Ganganagar was directed to deal with this matter by the learned Sessions Judge. The learned Magistrate by the impugned order dated 14/7/1987 accepted the protest petition filed by complainant Baldeo Singh and took cognizance against him for the. aforesaid offences. Hence, this petition.

( 3 ) I have heard Mr. B. R. Arora, the learned counsel for the petitioner and Mrs. Chandralekha, Public Prosecutor for the State and have carefully gone through the record of the case.

( 4 ) IT was contended by Mr. Arora that the Magistrate has now power to take cognizance against the accused under section 190 (1) (b), cr. P. C. in case a report is filed by the police under section 169, Cr. P. C. in favour of a particular accused.

( 5 ) IN this respect, he placed reliance on a decision of this Court in Ratanlal v. State of Rajasthan wherein it has been held that if the police files a negative or a final report then the Magistrate cannot take cognizance under section 190 (1) (b), Cr. P. C. and direct the police to file a charge sheet against the accused. The Magistrate had, therefore, no jurisdiction to take cognizance of the offence under section 190 (1) (b), Cr. P. C. on a final report submitted by the police. Mr. Arora, therefore, submitted that in view of the aforesaid authority of the Court the continuation of these proceedings is nothing but a gross abuse of the process of court. I entirely agree with the learned single Judge of this Court that if the police files a negative or final report then the Magistrate cannot direct the police to file a charge sheet against the accused. These observations of the learned Judge are hased on a decision of their Lodships of the Supreme Court in Abhinandan Jha and others v. Dinesh Mishra. However, decision of the learned Judge that if the police files a negative or a final report then the Magistrate cannot take cognizance under section 190 (1) (b) does not lay down the correct law in view of the decision of their Lordships of the Supreme Court in B. S. Bains v. State, wherein it has been observed as follows:thus, a Magistrate, who on receipt of a complaint, orders an investigation under section 156 (3) and receives a police report under section 173 (1), may there fore, do one of the three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under section 190 (1) (b) on the hasis of the police report and issue process; he may do so without being bound in any manner by the conclusions arrived at by the police in their reports; (3) he may take cognizance