ORDER

By the instant petition filed under Article 226 of the Constitution of India, the petitioner is seeking quashing of proceeding pending before the Judicial Magistrate First Class, Udaipura in R.T. No.98/2019 (State Vs. Manish) and the order passed by the Magistrate whereby despite submitting the charge-sheet (final report) by the police mentioning therein that the accused namely Brajesh Basediya and Brij Kishore Tinguriya on the basis of the material collected during the course of investigation do not appear to be an accused, the petitioner has been compelled to face trial.

2. Learned counsel for the petitioner has submitted that during pendency of the petition Brajesh Baserida has expired. He has further submitted that the Magistrate has no power to substitute the opinion of the police whereunder police has opined that a particular accused cannot be arrayed as an accused on the basis of the material collected and, therefore, such an order of the Magistrate passed on 31.03.2021 (Annexure P/6) is illegal and deserves to be set aside. In support of his submission, he has relied upon the judgments reported in 1968 AIR (SC) 117- Abhinandan Jha and others Vs. Dinesh Mishra, (1998) 5 SCC 749- Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, 1992 AIR SC 604 - State of Haryana and others Vs. Ch. Bhajan Lal and others and in case of Kapil Agarwal and others Vs. Sanjay Sharma and others passed in Criminal Appeal No.142 of 2021. 3. Shri Baghel, learned counsel for the respondents/State on the other hand has opposed the submission made by counsel for the petitioner and supported the order passed by the Magistrate and further relied upon the judgment passed by the Supreme Court in case of Minu Kumari and another Vs. State of Bihar and others reported in (2006) 4 SCC 359 and also in case of Nahar Singh Vs. The State of Uttar Pradesh and another reported in 2022 Live Law (SC) 291. 4. Considering the submissions made by learned counsel for the parties and on perusal of record so also the judgments on which counsel for the parties have placed reliance, it is clear that the police in its opinion at the time of filing the charge-sheet has opined that during the course of investigation nothing is collected against the accused Brajesh Basediya and Brij Kishore Tinguriya so as to make them accused as they were not found involved in the said offence and it appears that without collecting any material against them, they have been made accused. The sanction for removing those persons from the array of accused has been obtained from the higher officers of Police Department and, therefore, name of those persons were removed from the array of accused and charge-sheet was not filed against them. Although, during the pendency of the petition, one of the petitioners namely Brajesh Basediya has expired, therefore, this petition is only for Brij Kishore Tinguriya. At the time of taking cognizance, the trial Court not only exercised the power provided under Section 190 of Cr.P.C. but on the basis of material collected by the prosecution also issued warrant of arrest against the present petitioner.

5. The question raised before this Court is that there was no material available before the trial Court to issue warrant of arrest against the present petitioner or to make him accused despite that the trial Court has exercised the power. However, as per counsel for the petitioner in view of law laid down by the Supreme Court in case of Abhinandan Jha (supra), the Magistrate cannot compel the police to make a particular person as an accused whose name is not there in the police report.

However, from perusal of the order passed by the trial Court, it is clear that the trial Court has discussed the evidence available on record along with the charge-sheet and thereafter came to the conclusion that present petitioner is also involved in the offence as sufficient material i