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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 charge-

sheet.  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.

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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 charge-

sheet 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,  learned

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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