GOYAL, J. - (1.) THIS S. B. Criminal Revision is directed against the order dated 11. 6. 2002 whereby the learned Additional Sessions Judge, Rajgarh, District Alwar set aside the order dated 18. 1. 2002 whereby the learned ACJM, Rajgarh, District Alwar took cognizance against the five accused persons including the accused respondent No. 2 Ramesh Chand for offence under Sections 147, 148, 323, 341, 302 read with Section 149 IPC.
(2.) THE relevant facts in brief are that the complainant- petitioner submitted a written report at concerned police station on 19. 10. 2001 with the averments that on account of some quarrel between the children, the accused persons had developed enmity with Ramprasad and at about 2. 30 p. m. on 19. 10. 2001, the accused persons named in the F. I. R. , inflicted a number of injuries to Ramprasad with lathis. Accused Rambharosi, Ramesh Chand and Shri Chandra with an intention to kill, inflicted lathi blow on the head of the Ramprasad and Ramprasad has been taken to the hospital in serious condition. F. I. R. was registered under Section 147, 149, 323, 341, 307 IPC. On the next day i. e. 20. 10. 2001 injured Ramprasad died in the hospital and thereafter offence under Section 302 IPC was added and after completion of the investigation charge-sheet came to the filed against the accused persons Shri Chandra, Rambharosi, Chottelal and Leela Ram. Charges-sheet against Leela Ram was filed with the aid of Section 299 Cr. P. C. The investigation was kept pending against the accused respondent Ramesh Chand as provided under Section 173 (8) Cr. P. C. The learned Magistrate vide order dated 18. 1. 2002 came to the conclusion that on the basis of the contents of the F. I. R. and the evidence collected by the Investigation Officer, cognizance under the said Sections was taken against five accused persons including the accused respondent Ramesh Chand. Aggrieved by this order accused respondent Ramesh Chand filed criminal revision petition No. 13/2002 which was allowed by learned Additional Sessions Judge vide order dated 11. 6. 2002 as stated here-in-above. Now the point for consideration before this Court is as to whether the learned ACJM was competent to take cognizance against the accused respondent No. 2 Ramesh Chand, although the police stated in the charge-sheet that investigation against Ramesh Chand is pending as provided under Section 173 (8) Cr. P. C. Learned counsel for the complainant-petitioner contended that police after investigation submitted the report under Section 173 (2) Cr. P. C. and it was a report submitted by police after investigation and the Magistrate was competent to take cognizance under Section 190 (1) (b) Cr. P. C. and the report of the Investigation Officer to this effect that investigation against accused Ramesh Chand is kept pending under Section 173 (8) Cr. P. C. cannot preclude the Magistrate in taking cognizance if there was sufficient evidence to take the cognizance. Reliance is placed upon State of Maharashtra vs. Sharadchandra Vinayak Dangre & Ors. (1) and M/s. Swil Ltd. vs. State of Delhi & Anr. Per contra learned counsel for the accused respondent No. 2 contended that since no charge-sheet or final report was submitted against the accused respondent No. 2, the Magistrate was not competent to take cognizance against him. Reliance is placed upon following judgments:- Ganesha Ram & Ors. vs. state of Rajasthan (3), wherein this Court held that when the investigation was kept pending against some of the accused persons under Section 173 (8) Cr. P. C. , the Magistrate cannot take cognizance against such accused persons. In another judgment of this court, Sukhdas & Ors. vs. State of Rajasthan (4), it was observed in para 53 that where the police submits charge-sheet against some of the accused persons, the Magistrate cannot proceed against the remaining accused persons, though this bar cannot be applied to the cases were the police submits a total negative report. In Chhotu Ram vs. State of Rajasthan (5), it was held by this Court that the name of accused petitioner was not included in the charge-sheet and the investigation against him continued under Section 173 (8) Cr. P. C. , the Magistrate cannot take cognizance against him under Section 190 Cr. P. C. In Abhinandan Jha & Ors. vs. Dinesh Mishra (6), the point in question was different as the police submitted a report under Section 169 Cr. P. C. that no case is made out for sending up the accused for trial. In that case it was held by Hon'ble Supreme Court that Magistrate has no power to call upon police to submit a charge-sheet. Learned counsel for the accused respondent No. 2 also relied upon the judgment of Hon'ble Supreme Court delivered in M/s. Swil Ltd. 's case (supra) and contended that the Magistrate can take cognizance if the final report (negative) is submitted and not otherwise. I have considered the rival submissions. The Hon'ble Supreme Court in State of Maharashtra vs. Sharadchandra Vinayak Dangre & Ors. (supra) held that when the police submitted charge-sheets and also an application with prayer that some evidence against some of the accused persons, who had not been sent up for trial, was yet to be collected and therefore, incomplete charge-sheet is being submitted and permission was sought to make further investigation to collect additional evidence. The Magistrate took cognizance against the accused persons and the said order of taking cognizance was set aside by the High Court. But the Hon'ble Supreme court held that if the investigation officer terms a police report as `incomplete' it does not take away the jurisdiction of the Magistrate to take cognizance of the offence, even if in the opinion of the Magistrate, the material was sufficient for taking cognizance. It was further held that the Magistrate is not bound by the label given to the report or the charge-sheet by the investigating officer and it is for the Magistrate to decide whether the report and the material on which it is based, is sufficient for taking cognizance or not. In M/s. Swil Ltd. vs. State of Delhi & Anr. (supra) the charge-sheet could not be filed against respondent No. 2 on the ground of the on stay order issued by the High Court of Kerala and thus he was not joined as accused in the charge-sheet submitted by the police but his name was shown in column No. 2 of the charge-sheet which is meant for the accused who are not sent for trial. On the basis of the said charge-sheet the Magistrate took cognizance and issued summons against all the accused persons shown in the F. I. R. The High Court set aside the order but the Hon'ble Supreme Court allowing the appeal set aside the impugned order passed by the High Court and held that on a report submitted under Section 173 (2) Cr. P. C. , the Magistrate takes cognizance of the offence and not of the accused and thus, even if a person is not sent up for trial, the Magistrate may apply his mind and issue process to such person, and Section 319 Cr. P. C. has no application. It was further held that the Magistrate is entitled to take cognizance of an offence under Section 190 (1) (b) Cr. P. C. even if the police report is to the effect that no case is made out against accused. Learned counsel for the accused respondent No. 2 contended that according to this judgment of Hon'ble Supreme Court, the Magistrate was competent to take cognizance only when the final report is submitted. But this contention cannot be accepted in view of the judgment of Hon'ble Supreme Court in para 6 of the judgment. The Hon'ble Supreme Court held that the Magistrate is required to consider the F. I. R. and the statements recorded by the police officer and other documents tendered along with charge-sheet and upon receipt of police report under Section 173 (2) Cr. P. C. the Magistrate is entitled to take cognizance of an offence under Section 190 (1) (b) Cr. P. C. Thus, in view of the judgments of Hon'ble Supreme court, learned ACJM was competent to take cognizance against the accused respondent No. 2 also. The learned ACJM considered the F. I. R. and the statements of the witnesses recorded by the investigating officer and came to this conclusion that there is evidence against all the five accused persons including Ramesh Chand for taking cognizance under the said Sections as stated here-in-above. Though, the contention of learned counsel appearing for the respondent No. 2 Ramesh Chand is supported by the judgments of this court as cited here-in-above but in view of the judgments of Hon'ble Supreme court, there was no ground for learned Additional Sessions Judge to interfere in the order dated 18. 1. 2002. In view of the entire above discussion, this revision is allowed, and the impugned order dated 11. 6. 2002 passed by learned Additional Sessions Judge, Rajgarh, district Alwar is set aside. . ;