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Thursday, April 11, 2013

whether the Chief Judicial Magistrate is right in issuing the summons to the petitioners who were named in the FIR, but not in the chargesheet. = We notice that in this case the petitioners have been named in the FIR and learned Magistrate after perusing the FIR, case diary and the death report came to a prima facie conclusion of the involvement of all the persons named in the FIR in the occurrence. Learned Magistrate expressed the view that there are enough materials to initiate prosecution against them apart from the charge sheeted accused persons


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Non-reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Special Leave Petition (Crl) NO.7679 of 2012
Dhrup Singh and others .. Petitioners
Versus
State of Bihar .. Respondent
J U D G M E N T
K. S. Radhakrishnan, J
1. We are, in this case, concerned with the question
whether
the Chief Judicial Magistrate is right in issuing the summons to the
petitioners who were named in the FIR, but not in the chargesheet. 
The order passed by the Chief Judicial Magistrate in A.U.P.
No.572 of 2011 dated 18.04.2011 was challenged by the
petitioners before the High Court, without any success, against
this special leave petition has been preferred.Page 2
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2. We notice that cognizance has been taken by the Magistrate
vide its order dated 8.4.2011 against the petitioners for offences
under Section 302/34 IPC read with Section 27 of the Arms Act.
Counsel for the petitioners submitted that the learned Magistrate
was not justified in invoking Section 319 of the Code of Criminal
Procedure (Cr.P.C.) since the petitioners were not charge-sheeted
by the police after conducting the investigation. Learned counsel
pointed out that so far as those persons against whom chargesheet has not been filed they can be arrayed as accused persons
in exercise of powers under Section 319 Cr.P.C. only when some
evidence or materials are brought on record in the course of trial.
Learned counsel also referred to the Judgment of this Court in
Hardeep Singh v. State of Punjab and others (2009) 16 SCC
785 and submitted that an identical question came up for
consideration before the two Judge Bench of this Court and in view
of the conflicting views expressed by two Judge Bench in Mohd.
Shafi v. Mohd. Rafiq and another (2007) 14 SCC 544 and a
two Judge Bench in Rakesh and another v. State of Haryana
2001(6) SCC 248, the matter was referred to a larger Bench and
the same is pending consideration. In such situation, learnedPage 3
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counsel submitted that this case also may be referred to a larger
Bench.
3. Mr. Gopal Singh, learned counsel appearing for the
respondent-State, on the other hand, placed reliance on a
subsequent Judgment of this Court in Uma Shankar Singh v.
State of Bihar and another (2010) 9 SCC 479 and stated that
such a request was declined by this Court stating that even if the
investigating authority is of the view that no case has been made
out against an accused, the Magistrate can apply his mind
independently to the materials contained in the police report and
take cognizance thereupon.
4. We notice that in this case the petitioners have been named
in the FIR and learned Magistrate after perusing the FIR, case
diary and the death report came to a prima facie conclusion of the
involvement of all the persons named in the FIR in the occurrence.
Learned Magistrate expressed the view that there are enough
materials to initiate prosecution against them apart from the
charge sheeted accused persons. The High Court has also
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concurred with that view. In such a situation, we find no good
reasons to take a different view from that of the learned
Magistrate as well as that of the High Court. Hence, this special
leave petition lacks merit and the same is dismissed.
……………………………..J.
(K.S. Radhakrishnan)
……………………………..J.
(Dipak Misra)
New Delhi,
April 08, 2013

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