# RAGHUBANS DUBEY v. STATE OF BIHAR

- **Citation:** [1967] 2 S.C.R. 423
- **Court:** Supreme Court of India
- **Decided:** 1967-01-19
- **Case number:** Criminal Appeal No. 189 of 1964
- **Bench:** M. Hidayatullah, S. M. Sikri, C. A. Vaidial!Ngam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raghubans-dubey-v-state-of-bihar-3983
- **Pages:** 6

## Headnote

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Code of Criminal Procedure (Act 5 of
1898), ss. 190(1)(h) and
201-Magistrate taking cognizance of ofjenc.e on police report-Jurisdiction 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 conclusion 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.

## Text

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RAGHUBANS DUBEY
v.
STATE OF BIHAR
January 19, 1967
423
B
[M. HIDAYATULLAH, S. M. SIKRI AND C. A. VAIDIAL!NGAM, JJ.]
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Code of Criminal Procedure (Act 5 of
1898), ss. 190(1)(h) and
201-Magistrate taking cognizance of ofjenc.e on police report-Jurisdiction 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 conclusion 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 dismissing 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 Criminal 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 petition had been filed on April 11, 1961, praying that the appellant be summoned hy the Magistrate. On May 2. 1961, Jagannath Sao, P. W. I, was examined and in his examination-inchief 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 counsel for Raja Ram Sah, the person who lodged the F.l.R., requested the Magistrate to summon the appellant as well for trial.
as prayed for in the petition dated April II, 1961,
The Magistrate, after hearing the Assistant District Prosecutor as well as
the counsel for the informant and the accused,
passed the
following order:-
"Raghubans is named in F. I. R. and as submitted
by A. D. P.
5 witnesses have named him before police
and P. W. I examined before me has also named him.
So
in my opinion it is proper to add Raghubans
Dubey also in this
enquiry as accused. At this stage
one petition has been filed by lawyer of accused that
cross-examination of P. W.s. be allowed to be done after
appearance of Raghubans. This contention is quite
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RAGHUBANS DUBEY V. STATE (Sikri, /.)
reasonable otherwise cross-examination will have to be
done again after appearance of Raghubans and so prayer
of defence is allowed. Examined P. W. 2 also in chief.
He has also named Rahgubans to be a member of the
mob of these accused at the time of occurrence. So
issue non-bailable W/A against
Raghubans
Dubey
according to address given
by
P. W.
Mahesh Sah
today as the allegation against Raghubans appears to
be very serious one. Send the process by
special
peon
returnable
by
3-6-196 l. Other accused will
re-attend."
The appellant challenged this order before the Sessions Judge.
It was urged before him that the Magistrate had no jurisdiction to summon the appellant because the Sub-divisional Magistrate had already dismissed a protest petition on merits.
The Sessions Judge rejected the argument and held that it was
open to the Magistrate to summon any person against whom he
found sufficient evidence in the case.
The appellant then filed a criminal revision before the
High Court. Before the High Court it was urged, first, that
the petition dated April II, 1961, was a petition of complaint
and, therefore, summoning the appellant on the basis of a petition of complaint would result in a separate u:.1nplaint case
and he could not be tried along with the other accused under s.
207 A of the Code of Criminal Procedure. Secondly, it was urged
that the order of the Magistrate was irregular as he had summoned the appellant on the same grounds on which the
Subdivisional Magistrate had discharged him. On the first
point
the High Court held that the order of the Magistrate did not
result in a separate complaint case against the appellant as
"the present case was instituted when the sub-divisional Magistrate took cognizance of an offence reported by the Police,
and therefore, the case shall be deemed to have been instituted
on the police report." The High Court further observed that
"it is, therefore, clear from the language of section 190 of the
Code that the Magistrate takes cognizance of an offence made
out in the police report or in the petition of complaint and there
is nothing like taking cognizance of the offenders at that stage.
It has to be decided on the materials on record as to who actually the offenders may be only after cognizance of the 'Offence
has been taken. On the facts of the instant case, therefore, cognizance of the offence has been taken on a police report, and the
order of the transferee Magistrate summoning Raghubans Dubey
does not amount to taking cognizance of an
offence." On
the second point the High Court held that the
Magistrate did
not summon the appellant only on ihose grounds which were before the Sub-divisional Magistrate as the materials before the
426
SUPlll!ME COURT REPORTS
(1967) 2 S.C.R.
two Magistrates were not identical. The Sub-divisional Magistrate had acted on the Police report alone but the Magistrate took
into consideration the evidence of the two prosecution witnesses
examined in court as well.
The learned counsel for the appellant, Mr. Danial Latifi•
raises two points before us; first that the discharge of the appellant by the order dated April 5, 1961, by the Sub-divisional Magistrate was final, and secondly, that the proper procedure to
be observed on the facts of this case was not under s. 207 A but
under the subsequent sections in Chapter XVIII of the Criminal
Procedure Code. We see no force in these points.
Regarding the fir;t point Mr. Latifi urges that judicial refusal to summon amounts to discharge. There is no. force in
this contention because there cannot be any question of discharge
when the appellant was not sent up upon the charge-sheet submitted by the police.
Coming to the second point the learned counsel for the appellant contends that no proceeding was instituted against the
appellant on a police report within the meaning of s. 207 A of the
Code because the appellant's name was not included in the charge
sheet.
He says that although congnizance might have been taken
of an offence under s. 190(l)(b) no proceeding as such was instituted against the appellant at this stage; the proceeding was
instituted when a non-bailable warrant was issued against the
appellant and this proceeding was instituted not on the basis of
a police report but on the basis of evidence taken before the Magistrate, and, therefore, he says, it is a proceeding falling within
s. 207(b).
Section 190(1) and 207 of the Code read as follows :
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"190( I) Except as hereinafter provided, any PresiF
dency Magistrate, District Magistrate or Sub-divisional
Magistrate, and any other Magistrate specially empowered in this behalf,
may take cognizance of any
offence-
(a) upon receiving a complaint of facts which constitute such offence;
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(b) upon a report in writing of such facts made by
any police officer;
(c) upon information received from any person
other than a police-officer, or upon his own knowledge or suspicion, that such offence has beel'. committed.'"
"207.
In every inquiry before a Magistrate where
the case is triable exclusively by a court of Session or
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llAGHUBANS DUBEY l'. STATE (S/kri, J.)
High Court, or, in the opinion of the Magistrate, ought
to be tried by such Court, the Magistrate shall-
(a) in any proceeding instituted on a police report,
follow the procedure specified in s. 207A; and
(b) in any other proceeding, follow the procedure
specified in the other provisions of this Chapter."
427
It seems to us that s. 207(a) refers back to s. 190(1)(b); in
other words, the police report mentioned in s. 207(a) is the report
mentioned in s. 190(1) (b), and once
cognizan~e is taken under
s. 190(l)(b), a proceeding is instituted within s. 207(a). Hidayatullah, J., speaking for the Court, while considering the interpretation of s. 251-A of the Code of Criminal Procedure in Pral'iu
Chandra Mody v. State of Andhra Pradesh(') observed as follows :
"In our judgment the meaning which is sought to be
given to a 'police report' is not correct. In s. J 90, a
distinction is made between the classes of persons who
can start a criminal prosecution. Under the three clauses
of s. 190(1), to which we have already referred, criminal prosecution can be initiated (i) by a police officer by
a report in writing, (ii) upon information received from
any person other than a police officer or upon the Ma-·
gistrate's own knowledge or suspicion, and (iii) upon
receiving a complaint of facts.
If the report in this case
falls within (i) above, then the procedure under s. 251A,
Criminal Procedure Code, must be followed.
If it falls.
in (ii) or (iii) then the procedure under s. 252, ' Criminal Procedure Code, must be followed.
We are thus
concerned to find out whether the report of the police
officer in writing in this case can be described as a 'complaint of facts' or as 'information received' from any
person other than a police officer.'
That it cannot be the
latter is obvious enough because the information is from
a police officer. The term 'complaint' in this connection has been defined by the Code of Criminal Procedure and it 'means the allegation made orally or in
writing to a Magistrate, with a view to his taking action
under the Code, that some person, whether known or
unknown, has committed an offence, but it does not include the report of a police officer.' [sees. 4(1)(h].
It, therefore, follows that s. 252, Criminal Procedure Code, can only apply to those cases which are .instituted otherwise than on
a police report, that is
to say, upon complaints which are not reports of
a police officer or upon information received froin persons other than a police officer."
(1) [19651 I S.C.R. 269.
~28
SUPRl!MI!
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IUIPOllTS
(1967) 2 S.C.R.
Similarly s. 207(h) can only apply if the case was instituted
<>therwise than on a polic-e report. On the facts of this case it
is quite clear that the case does not fall within s. 19()1 l)(a) or s.
l?O(l)(c) because the Sub-divisional Magistrate had taken cognizance of the offence on April 5, 1961.
But, says Mr.
Latif1.
that though it is true that cognizance was taken on April 5, 1961,
the cognizance was taken of the offence as far as the other accused
were concerned and not as far as the appellant was concerned,
as a matter of fact the appellant had been rightly or wrongly dis·
charged. In our opinion, once cognizance has been taken by
the Magistrate, he takes cognizance of an offence and not the
offenders; once he takes cognizance of an offence it is his duty
to find out who the offenders really are and once he comes to
the conclusion that apart from the persons sent up by the police
some other persons are involved, it is his duty to proceed against
those persons.
The summoning of the additional accused is part
of the proceeding initiated by his taking cognizance of an offence.
As pointed out by this Court in Pravin Chandra Mody v. State
of Andhra Pradesh(') the term "complaint" would include allegations made against persons unknown. If a Magistrate takes
cognizance under s. 190{1)(a) on the basis of a complaint of facts
he would take cognizance and a proceeding would be instituted
even though persons who had committed the offence were not
known at that time. The same position prevails, in ou• view.
under s. 190( I)( b ).
Mr. Sachthey, the learned counsel for the respondent brought
to our notice some decisions which have taken the same view.
The Calcutta High Court in Saifar v. State of West Bmgaf( ),
following the Full Bench decision of the Judicial Commissio1:~rs,
Sind, in Mehrab v. Emperor( ), held that when a Magistrate takes
cogni1.ance under s. 190(1)b) on a police report he takes cognizance of the offence and not merely of the particular persons named
in the charge sheet,
and therefore, the Magistrate is entitled
to summon additional accused against whom he considers that
there was good evidence, after perusal of the statements r.corded by the police under s. 161 and the other documents referred
to in s. 173 even without examination of witnesses in court.
The Punjab High Court in h11ta v. The State( 4) and the
Allahabad High Court in Ali Ullah v. The State(5) also expressed a
similar view.
In the result the appeal fails and is dismissed.
V.P.S.
Appeal dismissed.
(I) !19651 I S.C.R. 269.
(2) A.l.R. 1962 Cal. 133.
(3) A.l.R.1924Sind71.
(4) A.LR. 1964 Pun. Jll.
(5) [1963] 1 Cr.L.J. 66.
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