Govind Mathur, J. - (1.) By the order dated 25.2.2010 learned Judicial Magistrate, Sojat took cognizance for the offences punishable under Sections 363, 366 read with Section 120B Indian Penal Code against petitioners Mangilal and Kesaram and also took cognizance for the offences punishable under Sections 363, 366 and 376 read with Section 120B Indian Penal Code against petitioner Ruparam. A revision petition giving challenge to the order aforesaid came to be rejected by order dated 23.6.2010 passed by learned Sessions Judge, Pali.
(2.) To question correctness of the orders aforesaid this misc. petition is preferred with submission that the trial court could have not taken cognizance against the petitioners unless having an application as per provisions of Section 319 Cr.P.C. and i.e. only after examining testimonies of the witnesses and on satisfying about availability of prima facie case against the petitioners concerned.
(3.) The argument advanced is not sustainable in view of the law laid down by Hon'ble Supreme Court in the case of Uma Shankar Singh v. State of Bihar, reported in 2011 (1) CJ (Cr.) (SC) 1 . In the case aforesaid Hon'ble Supreme Court held as under:- "15.There is substance in Mr. Rai's submission that for a decision in the facts of the case, it is not necessary to wait for the outcome of the result of the reference made to a larger Bench in Dharmpal's case. The reference is with regard to the Magistrate's power of enquiry if he disagreed with the Final Report submitted by the investigating authorities. The facts of this case are different and are covered by the decision of this Court in the case of India Carat Pvt. Ltd. (supra) following the line of cases from Abhinandan Jha v. Dinesh Mishra, (1967) 3 SCR 668 onwards. The law is well-settled 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 in exercise of his powers under Section 190(1) (b) Cr.P.C. 16.That is precisely what has happened in the present case. In the instant case the investigation had been handed over to the C.I.D. and both the C.I.D. and local police had submitted their reports in final form exonerating the petitioner of the allegations made against him in the F.I.R. However, the Chief Judicial Magistrate, Siwan, took cognizance of the offence under Section 302/379 IPC and Section 27 of the Arms Act against the petitioner. This is not a case where the Magistrate took recourse to any further inquiry but took cognizance on the police report itself, which he was entitled to do under Section 190(1)(b) Cr.P.C.";