JUDGMENT 1. - This revision petition is directed against the order of the learned Chief Judicial Magistrate, Sri Ganganagar dated 23-7-1986 whereby he has taken cognizance against the accused-petitioner for the offence under Section 302/34 Indian Penal Code and has rejected the application filed under Section 169 Cr.PC by the Inspector, CID, CB, Jaipur for cancelling the prosecution against the accused petitioners. 2. The facts necessary to be noticed for the disposal of this case briefly stated are that the Inspector, CID, CB, Jaipur filed a challan in the court of the learned Chief Judicial Magistrate, Sri Ganganagar against one accused Daljeet Singh. In the challan papers, it was mentioned that further investigation is going on against the accused-petitioners. The learned Magistrate, after considering the material on record, came to the conclusion that on the basis of the material submitted before him, prima facie a case under Section 302/34 Indian Penal Code is made out against the accused-petitioners and, therefore, he took cognizance against the accused-petitioners of the offence under Section 302/34 Indian Penal Code. 3. Later on, it appears that after the investigation was completed, the Inspector, CID, CB, Jaipur filed a report under Section 169 Cr.PC that no offence has been made out against the accused-petitioners and, therefore, the prosecution against them should be dropped. The learned lower court, after hearing both the parties rejected that application by the aforesaid impugned order. Hence this revision. 4. I have heard Mr. M.K. Garg, the learned Counsel appearing for the petitioners, Mr. U.C.S Singhvi, the learned Public Prosecutor for the State and Mr. Nand Lal, the learned Counsel for the complainant and have carefully gone through the record of the case. 5. The allegation of the prosecution as contained in the FIR is that on 22-4-1986 at about 5.45 p.m., the complainant Mohan Munjral, Om Prakash Verma, Mahendra Verma and Kailash Soni were taking tea at Haryana Sweet Corner, Sri Ganganagar which is situated near the Custom Office. At that time, the accused Daljeet Singh along with Pappu Pandit and Ganeshi came on a Motor Cycle. Daljeet Singh was armed with a small sword (Kripan) whereas accused Pappu Pandit was armed with a sword and accused Ganeshi was armed with a Lathi. It is alleged that they caught hold of Kailash Soni, with whom they had old enmity. At that time, the accused Daljeet Singh along with Pappu Pandit and Ganeshi came on a Motor Cycle. Daljeet Singh was armed with a small sword (Kripan) whereas accused Pappu Pandit was armed with a sword and accused Ganeshi was armed with a Lathi. It is alleged that they caught hold of Kailash Soni, with whom they had old enmity. When they caught hold of him, it is alleged that accused Pappu Pandit and Ganeshi asked Daljeet to beat him, on this Kailash's companions cried for help. Accused Pappu Pandit and Ganeshi told accused Daljeet that they should finish Kailash where upon, accused Daljeet took out his small sword and inflicted 2-3 injuries to Kailash, by which, he fell down. The accused persons then ran away from the place of the occurrence riding on the same Motor Cycle on which they came there and the injured Kailash was shifted to the Hospital and there, he died because of these injuries. 6. A report of this incident was immediately lodged at R.S. Kotwali, Sri Ganganagar within 15 minutes of the occurrence, in which the occurrence has been narrated as aforesaid On the basis of this report, the Inspector, CID, CB, Jaipur submitted challan against accused Daljeet but the learned lower court, after considering the material on record, has taken cognizance against accused Daljeet Singh for the offence under Section 302 Indian Penal Code and against accused petitioners for the offence under Section 302/34 Indian Penal Code. 7. Mr. M.K. Garg, the learned Counsel appearing for the accused-petitioners has submitted that the impugned order of the learned lower court taking cognizance against the accused-petitioner is against the decision of this Court in Hari Mohan and Ors. v. State of Rajasthan 1987 (1) RLR 869 where in it was held as under: "In the scheme of the procedure for commitment to the court of Sessions as provided under the Code of Criminal Procedure, 1973, there is no power to the Magistrate to make any inquiry in a case instituted on Police report where the offence is triable exclusively by the court of Sessions. In a case instituted on a complaint, of course, the Magistrate, is competent to make an inquiry during the committal proceedings." 8. On the other hand, Mr. In a case instituted on a complaint, of course, the Magistrate, is competent to make an inquiry during the committal proceedings." 8. On the other hand, Mr. Nand Lal, the learned Counsel appearing for the complainant has submitted that actually Hari Mohan's case (supra) does not lay down a good law because it is against the express statutory provisions of the Code and so, it is not binding on the Court. According to him Harimohan's case overlooks an earlier authority of their Lordships of the Supreme Court on this particular aspect of the matter as also an authority of larger Bench of this Court. He has submitted that a decision which overlooks the decision of a superior court or a larger Bench of same Court is not binding on this court. He drew my attention to Jaisri v. Raj Dewan ( AIR 1962 SC 83 ) where in it has been observed that when a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench. It was further observed: "In Buddah Singh v. Laltu Singh[ILR 37 All 604 : AIR 1915 PC 17] the Privy Council had occasion to discuss the procedure which should be adopted when a Bench of High Court differs from the opinion given by a previous Bench. After referring to Suraya Bhukta v. Lakhas-hminarasamma, ILR 5 Madras 291 and Chinnasami Pillai v. Kunju Pillai, ILR 35 Mad-152 where decisions had been given based on the opinions expressed by Devananda Bhatta in the Smiriti Chandrika the Privy Counsel observed: "Curiously enough there is no reference in either of the Madras judgments referred to above to a previous decision (Parasara Bhattar v. Rangaraja Bhattar ILR 2 Madras 202) of the same court to which Turner, C.J., was also a party. In that case, the rule of the Smriti Chandrika was not accepted nor was the literal construction of the Mistakshra followed. In that case, the rule of the Smriti Chandrika was not accepted nor was the literal construction of the Mistakshra followed. It is usual in such cases where a difference of opinion arises in the same court to refer the point to a Full Bench, and the law provides for such contingencies Had that course been followed, their Lordships would probably have bad more detailed reasoning as to the change opinion on the part atleast of one Judge." In Jaisar's case their Lordships further observed: "Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question and a contrary decision is given without reference to the earlier decision.... There are exception to it, and one of them is thus stated in Halsbury's Laws of England, third addition, Vol. 22, para 1687, pp-799-800: "The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of court of a coordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case, it must decide which decision to follow, and in the latter is bound by the decision of the House of Lords." 9. Mr. Nandlal, the learned Counsel appearing for the complaint has further drawn my attention to a decision of this Court in Sheoram v. State of Rajasthan 1982 Cr. LJ 637 , wherein it has been held: "The Magistrate, under Section 190, Cr.PC is empowered to take cognizance of a case in which the police has recommended that no offence is made out and also against the accused, for which, the police has recommended that no case is made out. These powers of the Magistrate have been well recognised by the authoritative pronouncement in Lumba Ram v. State 1965 RLW 349 . These powers of the Magistrate have been well recognised by the authoritative pronouncement in Lumba Ram v. State 1965 RLW 349 . This Court observed as under: "Held that it is possible for a Magistrate to take cognizance of an offence on a police report even though the police wants him to accept its negative report, if that report contains facts constituting of offence. So far as the present case is concerned, it is obvious that a complaint has been filed before the Magistrate. He could not therefore take cognizance of the offence Under Clause (a). The Magistrate has also not indicated if he wanted to take cognizance upon information received from any person other than a Police Officer or on own knowledge or suspicion and, therefore, Clause (c) also does not apply. He has proceeded to take cognizance of the offence on the simple ground that no evidence was recorded before him. This was obviously wrong. It was not necessary for that court to record evidence before accepting the police report. He should apply his mind to the report. If he found that any offence could be constituted on the basis of the fact mentioned therein he could take cognizance of the offence, otherwise he should have accepted it."(para 6) In Sheoram Singh's case (supra), it was further observed as follows: "The stage of invoking the jurisdiction under Section 190 Cr.PG is well known and it is only when the police papers which are known as police reports and the statements and documents annexed to it are placed before the Magistrate by virtue Of Section 173, Cr.PC. The Magistrate under Section 190 Cr.PC at this stage can exercise one of the options of taking cognizance by resort to Section 190(1). Once the case proceeds further either by way of recording of evidence by the Magistrate or commitment to the sessions, as; the case may be, the Magistrate becomes functus official so far as powers under Section 190, Cr.PC are concerned. The Sessions Judge who tries sessions case after commitment as a hang over of the Magistrate who becomes functus officio cannot exercise the powers under Section 190 Cr.PC. The Sessions Judge who tries sessions case after commitment as a hang over of the Magistrate who becomes functus officio cannot exercise the powers under Section 190 Cr.PC. The stage is then set for invoking Section 319, Cr.PC." The observations of the Division Bench in Sheoram's case (supra) in paras 26 and 29 clearly show that once the report is filed by the police before the Magistrate under Section 173 Cr.PC or for that matter under Section 170 Cr.PC and the Magistrate takes cognizance of the offence then he has a right to summon any person who is concerned with that offence irrespective of the fact whether the police has submitted a positive report with regard to that person or has filed a negative report as regards that person. The Magistrate is not bound to agree with the report of the Police Officer He can take his own independent view. Actually, while deciding the case of Harimohan and Ors. (supra) (1987(1) RLR 869). the learned Single Judge has failed to consider the provisions of Section 190 Cr.PC More over, it appears that Sheoram's case (supra) was not brought to the notice of the court It is true that the ratio of Sheoram's case was challenged before a Full Bench in Dalipsingh v. State of Rajasthan Full Bench Cr. Misc. Petition No. 191 of 1986, decided on May 16, 1988. That reference was against the correctness of the view taken in Sheoram's case (supra) as regard its interpretation of the word 'evidence' occurring in Section 319 Cr.PC. No other point was challenged in that reference and while deciding that reference, the Full Bench has referred to two decisions of their Lordships of the Supreme Court in Raghnbans Dubey v. State of Bihar [ AIR 1967 SC 1167 ] and Hareram Satpathy v. Tikaram Agarwal ( AIR 1978 SC 1568 ), which clearly show that in case of negative report and in case of no report as regards certain accused-persons, the Magistrate has power to take cognizance under Section 191B Cr.PC. In Dalipsingh's case (supra), the Full Bench observed as under: "The meaning of the term 'taking cognizance' under Section 190(1)(b) and 251-A of the Old Code was the subject matter of discussion before Hon'ble the Supreme Court in the case of Raghubans Dubey v. State of Bihar [ AIR 1967 SC 1167 ] where in the learned Judges have explained the meaning of the term 'taking cognizance' as under: 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 conies 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." The question of taking cognizance against persons not mentioned in the police report came for consideration in the case of Hareram Satpathy v. Tikaram Agrawala and Ors. [ AIR 1978 SC 1568 ] and following the principle enunciated in the case of Raghubans Dubey (supra), it was held as under: "Where the Magistrate after taking cognizance of the offence and perusal of the record and haying been satisfied that there were prima facie grounds for issuing process against certain persons not mentioned in the police report, issued process against them, the Magistrate could not be said to have exceeded the power vested in him under law." Taking an oyer all view in the matter and following the decisions of their Lordships of the Supreme Court in Raghubans Dubey's case (supra) and Hareram Satpathy's case (supra) as also Sheoramsingh's case of this Court. I hold that Harimohan's case (supra) does not lay down correct law because it has omitted to consider the powers of the Magistrate under Section 190 Cr.PC and it has also failed to consider these authorities mentioned here in above. I have carefully gone through the record of the case and I find that on the basis of the evidence that has been collected in the case, the learned lower court was perfectly justified in taking cognizance against the accused petitioners of the offence under Section 302/34 Indian Penal Code. 10. I have carefully gone through the record of the case and I find that on the basis of the evidence that has been collected in the case, the learned lower court was perfectly justified in taking cognizance against the accused petitioners of the offence under Section 302/34 Indian Penal Code. 10. In the result, I find no force in this revision petition and it is here by dismissed summarily.Revision Dismissed. *******