JUDGMENT 1. - Petitioners have filed this petition under Section 482 Cr.P.C. praying that the order of the learned Munsiff and Judl. Magistrate, No. 1, Bharatpur, dated 10th September 1990, and confirmed by the learned Addl. Sessions Judge, No.1, Bharatpur, dated 25th March, 1991, taking cognizance of offence under Sections 302 and 498-A IPC against Lekhraj, Fatehsingh, Premvati and Rajveer, be quashed. 2. The brief facts leading to this petition are that Mst. Sunita, wife of accused Lekhraj, was admitted to General Hospital, Bharatpur, in the night intervening between 16th/17th June, 1989, with burn injuries on her person. She succumbed to the injuries and the Medico Legal Jurist, informed the police of this un-natural death. Consequently, the City Magistrate, Bharatpur, held an enquiry as contemplated by S. 174 Cr.P.C. During the course of that enquiry, statement of Sohan Singh, the father of the deceased Sunita, was recorded. According to this statement she was married with accused Lekhraj, on 2nd May, 1982, according to Hindu rites and had given birth to the male children. No dispute in the in-law's house was reported by her nor she ever reported that she had any quarrel with any member of his in-law's family. She was living happily with accused Lekhraj. On 17th July, 1989, Sunita's brother-in-law, (Devar) arrived at his place and informed that she has sustained burns on which he arrived at Bharatpur, Hospital, where Sunita, expired. He was unable to say as to how she sustained the burns. The statements of other persons were also recorded and the post-mortem was got conducted and the dead-body was handed-over to the husband for cremation. 3. On 18th June 1989, Shri Sohan Singh, lodged report at Police Station, Kumher, where-in he alleged that ever since his daughter married, her father-in-law Fateh Singh, and her husband Lekhraj, used to demand dowry and he being unable to give, she was mal-treated. On 16th June, 1989, he sent a message that the arrangement could not be made for money on which they got annoyed with Sunita and she was beaten by her mother-in-law Prema, father-in-law Fateh Singh, husband Lekhraj and brother-in-law Rajveer. On the same night, he alongwith his younger brother Vinod, was sleeping outside the house of Sunita and heard the cries of Sunita. On the same night, he alongwith his younger brother Vinod, was sleeping outside the house of Sunita and heard the cries of Sunita. When they rushed to the spot they found that the aforesaid 4 persons were sprinkling diesel on her and Fateh Singh, lit the file, as a result of which Sunita, got burns. He then took Sunita to the hospital where she succumbed to the injuries. On receipt of this report a case under Section 498-A and 302 IPC was registered. After investigation, the Deputy S.P. found that no case is made-out and, therefore, submitted the final report. The learned Magistrate, ordered further investigation in the matter and the Addl. S. P. Bharatpur, re-investigated the case and recorded the statements of certain witnesses as was directed by the learned Magistrate. The Addl. S.P. Bharatpur, submitted the charge-sheet against the accused Lekhraj alone, for offence under Ss. 306 and 498-A of the IPC. Accused Lekhraj, was arrested, who was thereafter bailed-out by the Court. 4. On 28th May, 1990, the learned Judicial Magistrate, No. 2, Bharatpur, directed the prosecution to furnish the copies of the documents and the statements alongwith the charge-sheet and the same were given to the accused Lekhraj. 5. The complainant moved an application for taking cognizance of the offence under Section 302 IPC and the learned Judl. Magistrate, this time took cognizance for the offence under Ss. 302 and 498-A, IPC against all the 4 accused persons and directed for the issuance of the warrants for securing the attendance of accused Rajveer, Premvati and Fatehsingh. This order is under challenged. 6. The submission of the learned counsel for the petitioners is that the learned Magistrate had already taken the cognizance of the offence under Ss. 306 and 498-A IPC against the accused Lekhraj, on 26th May, 1990, and he thereafter became functus officio. It is submitted that having taken the cognizance of the offence under S. 306 IPC and prima-facie coming to the conclusion that it was the suicidal death, he could not have taken the cognizance for the second time in the same case for the offerer under S. 302 IPC. Thus, the submission of the learned counsel for the petitioners is that according to the order-sheet dated 28th May, 1990, learned Public Prosecutor, filed the charge sheet against accused Lekhraj, for offence under Sections 306 and 498-A, IPC. Thus, the submission of the learned counsel for the petitioners is that according to the order-sheet dated 28th May, 1990, learned Public Prosecutor, filed the charge sheet against accused Lekhraj, for offence under Sections 306 and 498-A, IPC. He submitted that the learned Magistrate had no jurisdiction express or implied to have looked into the record of the case, once he had taken the cognizance for the offence under Ss. 306 and 498-A, IPC and handed over the papers under S. 173 of the Cr.P.C. since the stage under S. 209 Cr.P.C. had arrived, and the only jurisdiction which vested with the Court was that he could have committed the case to the Court of Sessions. In other words, the learned Magistrate, having crossed the stage of furnishing the copies to the accused, could not have taken the cognizance for the offence under S. 302 IPC. According to him it was only the Court of Sessions, which on perusal of documents could have proceeded further in to the matter. It is submitted that in the sessions triable case, no enquiry is contemplated by the Committing Magistrate, and he has only to ensure that the formalities contemplated by Ss. 207 and 208 Cr.P.C. are complied with. It is also submitted that the action of the learned Magistrate in subsequently taking cognizance for offence under Sections 302 and 498-A IPC is patently against the law and to say without jurisdiction. It is further submitted that the offence under S. 302 and 306 IPC are mutually exclusive & the entire order of the learned Magistrate, is without proper application of mind. It is also submitted that the accused Fateh Singh, being an elected Sarpanch, a conspiracy has been hatched any his political rivals after the lapse of about 7 months of the occurrence and the subsequent action of the complainants is at their behest. 7. Learned counsel for the petitioners has placed reliance on the decisions of Abhinandan Jha v. Dinesh Mishra 1968 AIR (SC) 117 , Mowu v. The Superintendent, Special Jail Nowgong Assam and ors., 1971(3) SCC 936 , Bankey Lal & ors. v. The State of U.P. 1971(3) SCC 185 . Devrapally Lakshminarayan Reddy & ors. v. Narayan Reddy and ors. 7. Learned counsel for the petitioners has placed reliance on the decisions of Abhinandan Jha v. Dinesh Mishra 1968 AIR (SC) 117 , Mowu v. The Superintendent, Special Jail Nowgong Assam and ors., 1971(3) SCC 936 , Bankey Lal & ors. v. The State of U.P. 1971(3) SCC 185 . Devrapally Lakshminarayan Reddy & ors. v. Narayan Reddy and ors. 1976 AIR S.C. 1672 , Ramchandra Meena v. The State of Rajasthan 1990 RCC 180 , Tejumal v. The State of Rajasthan, RLR 1988(2) 42 , State of U.P. v. Lakshmi Brahman and anr., 1983(2) SCC 372 , Makhan Singh v. The State of Rajasthan, 1987 RLW 386 , The Superintendent and Remembrancer of Legal Affairs West Bengal v. Mahendra Singh Cr.L.J. 1979 545 , Jamuna Singh & ors. v. Bhadai Shah 1984 AIR S.C. 1542 . Babban & ors. v. Sambarnurthy & ors. 1980 Cr.L.J. 248, Prahlad Singh v. State of Rajasthan & ors. 1990(1) WLN 255 and Smt. Aruna Devi v. The State of Rajasthan, 1991, Cr.L.R. (Raj.) 90 . 8. The submission of the learned Public Prosecutor and the learned counsel for the complainant is that the power of the learned Magistrate, is not exhausted only because of handing over the documents to the accused. It is also submitted that when a charge-sheet is submitted and a protest petition is filed till the application is disposed of, it cannot be said that the Court has taken cognizance on the documents submitted by the Investigating Officer. It is further submitted that the order dated 28th May, 1990, does not disclose that the learned Magistrate had taken the cognizance of the offence. The Court in fact, handed over the copy of the application moved by the complainant to the learned counsel for the accused and postponed the case for taking cognizance on 12th June, 1990. It is further submitted that it has categorically been mentioned in the order that the arguments were heard for taking cognizance. This clearly indicates that no cognizance was taken on that day. It is also submitted that the learned Magistrate has given cogent reasons as to why he had taken the cognizance for offences under Ss. 302 and 498-A IPC in the case. This clearly indicates that no cognizance was taken on that day. It is also submitted that the learned Magistrate has given cogent reasons as to why he had taken the cognizance for offences under Ss. 302 and 498-A IPC in the case. It is further submitted that the learned Magistrate, had left if open to the prosecution to furnish the list of the witnesses on whom it insists to rely and the accused will be given sufficient opportunity to defend the case. 9. Learned counsel for the complainant has relied on the cases of Shankar Ram v. The State, 1986 Cr.L.J. 707 , Sanjay Gandhi v. Union of India, 1978 Cr.L.J. 642 , Harjindar Singh v. The State of Punjab and ors. 1985(1) SCC 422 , Rajan Kumar Machnanda v. The State of Karnataka, 1990 SCC (CR) 537 , and Devi Singh v. State of Rajasthan 1990 Cr.L.R. 724 . 10. I have given my earnest consideration to the rival contentions and perused the record of the case. I am not inclined to go into the merits of the case, since it will prejudice the case of either side. But it is essential to look into the legal position which has arisen in this case and in a very peculiar circumstances, since the order construed by the learned Magistrate presents peculiar circumstances about the evidence likely to be placed on record. Before I discuss the law qua this case, it is essential to deal with the cases relied upon by the learned counsel for the parties. 11. In the case of Abhinandan Jha v. Dinesh Mishra (Supra). Their Lordships were considering the circumstances in which a Magistrate directed the police to submit the charge sheet against the accused petitioner. Their Lordships after reviewing the entire case law till then held:- "There is no power, expressly or impliedly conferred, under the Code, on a Magistrate, to call upon the police to submit a charge-sheet, when they have sent a report under S. 169 of the Code, that there is no case made out for sending up an accused for trial. Their Lordships after reviewing the entire case law till then held:- "There is no power, expressly or impliedly conferred, under the Code, on a Magistrate, to call upon the police to submit a charge-sheet, when they have sent a report under S. 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistracy and the police are entirely different and though, the Magistrate, may or may not accept the report, and take suitable action according to law, he cannot impugns upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his views. Their Lordships further held that:- "The formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to police the accused before the Magistrate, for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, for formed. The formation of the said opinion, by the police, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority." 12. Their Lordships in this case considered the scope of S. 190(1)(a)(b) and (c) and thereafter held as above. How far the provisions of this case are applicable in the present case, shall be dealt with here-in-after. 13. In the case of Devarapalli Lakshminarayan Reddy and ors. v. Karayan Reddy and ors. (Supra). Their Lordships were considering in to what is the meaning of "taking cognizance of an offence" within the meaning of S. 190 Cr.P.C. In this case, their Lordships only decided the question about the power of the Court to send the complaint to the police for investigation under S. 156(3) Cr.P.C. and that it could be done before he takes the cognizance of the offence under Section 190(1)(a) Cr.P.C. 14. In the case of Ramchandra Meena v. State of Rajasthan (Supra), this Court, has held that once the cognizance was taken by the Magistrate, subsequently on an application, the Magistrate could not take cognizance for a distinct offence. 15. In the case of Ramchandra Meena v. State of Rajasthan (Supra), this Court, has held that once the cognizance was taken by the Magistrate, subsequently on an application, the Magistrate could not take cognizance for a distinct offence. 15. In the case of Teju Mal v. The State of Rajasthan (Supra) this Court has held that when a protest petition is filed, the complainant has to be given an opportunity to place the evidence before the Court and the learned Magistrate is bound to hold an enquiry. Depriving the complainant to palace its case is illegal. The Court was discussing the scope under S. 190(1)(b) and 210 Cr.P C. and held as under:- "After considering the evidence that has been led by the complainant and the record of the police investigation, the lower court will be free to take cognizance of the offence against the accused and if he feels that no case is made-out. may not issue process. In doing so, the lower court will take care of the fact that the accused has no right to take part in the proceedings or to get any document summoned. Case is sent back." 16. In the case of Jamuna Singh and ors. v. Bhadai Shah (Supra), the Court was considering as to whether in a case where the complainant has been examined on oath and the Magistrate, ordered the police to institute the case and charge-sheet is submitted, it will be deemed that the cognizance had been taken on a complainant and not on a police report. The Court also laid down the principles in the case that the cognizance having already been taken by the Magistrate, there was no scope for taking the second cognizance. At the most, it might be said that in so far as the learned Magistrate, asked the police to institute a case, he acted irregularly. Their Lordships however, thought it proper to interfere as no prejudice is caused in the case. 17. In the case of Prahlad Singh v. The State of Rajasthan and ors. (Supra), in this case, the learned Magistrate, had discharged the accused after discussing the evidence and had taken the cognizance under S. 448 IPC while dropping the case under S. 376 and 456 IPC. The Court held that what he could not do under S. 269 Cr.P.C. was done by him under S. 190(1)(a) Cr.P.C. 18. (Supra), in this case, the learned Magistrate, had discharged the accused after discussing the evidence and had taken the cognizance under S. 448 IPC while dropping the case under S. 376 and 456 IPC. The Court held that what he could not do under S. 269 Cr.P.C. was done by him under S. 190(1)(a) Cr.P.C. 18. In the case of Devi Singh v. The State of Rajasthan (Supra), this Court, answered the question:- "Whether the Magistrate, can take cognizance against the person not shown as accused by police in case, triable Sessions Court, before committing case? Magistrate is competent to take cognizance". 19. The Division Bench of this Court was considering the question as to whether a Magistrate can take cognizance against a person not shown as an accused by the police in a case exclusively triable by the Court of Sessions at the time of taking cognizance of the offence and the question was whether he could do so at the time even subsequent to that before committing the accused to the Court of Sessions. The Division Bench, has held that the learned Addl. C.J.M. was perfectly competent to give finding that the petitioner was prima-facie involved in the commission of an offence and thus to order for issue of process against him as part of proceedings initiated by him taking cognizanee of the offence. In this case, their Lordships over ruled the decision of this Court, reported in 1988 RLW 356. In the case of Shankar Ram v. The State, 1986 Cr.L J. 707 (Supra) the Full Bench of Panta High Court, considered the very important question which are as under:- (1) Whether the submission of final form after completion of the investigation in respect of the offence alleged against some of the accused persons within the statutory period mentioned in S. 187(2) proviso of the Code and keeping the investigation alive against the co-accused is permissible? (2) Whether the accused persons against whom investigation has concluded are entitled to get the benefit of S. 167(2) proviso on the ground that it has not concluded against those who were also suspected to have committed the offence alleged? (2) Whether the accused persons against whom investigation has concluded are entitled to get the benefit of S. 167(2) proviso on the ground that it has not concluded against those who were also suspected to have committed the offence alleged? and (3) Whether the final form submitted against some of the accused within the statutory period can be held to be a police report within the meaning of S. 173(2) of the Code; whatever may be said in respect of the supplementary police report submitted later against other accused against whom investigation and not concluded?. Their Lordships answered the questions as under:- "In the wake of the aforesaid findings the answer to the 3 questions, referred to the Full Bench, noticed in paragraph 4, may now be recorded. Accordingly, the answer to question No. 1, is rendered in affirmative and it is held that the submission of final form after competition of the investigation in respect of offences alleged against some of the accused persons within the statutory period mentioned in the proviso to S. 167(2) of the Code and keeping the investigation alive against co-accused is permissible." "The answer to question No. (2), is rendered in the negative and it is held that the accused persons against whom the investigation has concluded are not entitled to get the benefit of the proviso to S. 167(2) on the ground that it has not concluded against those who are also suspected to have committed the offence alleged." and "The answer to question No. (3) is rendered in the affirmative ancit is held that the final form submitted against some of the accused within the statutory period, can be held to be a police report within the meaning of S. 173(2) of the Code; whatever may be said in respect of any supplementary police report submitted against other accused against whom investigation has not concluded." 20. On a careful study of the aforesaid case law, the ultimate legal position, in my opinion, can be summarised in cases where final report is submition after investigation as under:- 1. The learned Magistrate, can refuse to accept the final report and take cognizance on the police report; 2. The Magistrate can direct re-investigation of the case; 3. That he can take cognizance of the offence on an information received from any person other than a police officer or upon his own knowledge; 4. The learned Magistrate, can refuse to accept the final report and take cognizance on the police report; 2. The Magistrate can direct re-investigation of the case; 3. That he can take cognizance of the offence on an information received from any person other than a police officer or upon his own knowledge; 4. The Magistrate can accept the final report but before accepting the same he is obliged to give notice to the complainant; 5. A Magistrate has no jurisdiction express or implied to direct the police to submit a charge-sheet; 6. In case a complainant had been filed and case is also investigated by the police and report is made by the investigating officer under S. 173 Cr.P.C. and the Magistrate takes cognizance on that report he shall enquire into and try together both the cases as were instituted on police report; 7. If the final report is given and there is a complainant pending, the Magistrate shall call upon the complainant to produce evidence in support of complainant and then proceed with the case in accordance with the law; 8. That in case the offence is triable exclusively by the Court of Sessions the Magistrate shall call upon the complainant to produce all his witnesses which he intends to produce at trial and examine them on oath; 9. That the Magistrate, has no jurisdiction to take cognizance twice but has the jurisdiction to add any number of offenders in a case provided the record discloses their names, however, before committing the cases. Cognizance in respect of offender is always subject to the provisions about limitation as provided in Chapter XXXVI Cr.P.C. 10. That the Magistrate is ceased of the jurisdiction to add the offenders once he has committed the case to the Court of Sessions; and 11. That merely supply of the copy to one of the accused before deciding the protest petition or the pending complainant, it cannot be said that the learned Magistrate, has taken cognizance of the offence. 21. In view of the aforesaid position of law the circumstances in the present case have to be considered for deciding this application. It is borne out from the record that initially after investigation the police had submitted a final report which was not accepted by the learned Magistrate and he directed re-investigation of which he has the jurisdiction. 21. In view of the aforesaid position of law the circumstances in the present case have to be considered for deciding this application. It is borne out from the record that initially after investigation the police had submitted a final report which was not accepted by the learned Magistrate and he directed re-investigation of which he has the jurisdiction. After re-investigation the police submitted charge-sheet against only one accused Lekhraj for offence under Sections 306 and 498-A IPC in the Court of learned Munsiff and Judicial Magistrate, Bharatpur, on which date the learned Magistrate, directed the supply of the copy of the charge-sheet to Lekhraj accused. However, a protest petition was pending on that date wherein it was prayed that cognizance should be taken for offence under Ss. 302 and 498-A IPC. The learned Magistrate on this protest petition deferred the hearing of the case of deciding as to for which offences the cognizance should be taken and against which accused. The entire controversy took-place because the learned Magistrate supplied the copies of the documents relied upon u/s. 173 Cr.P.C. to one of the accused even before the protest petition filed by the complainant was decided or in other words, before taking the cognizance of the offence. In my considered opinion, it would be fallacy to conclude that the learned Magistrate, had exhausted his powers since the copy of the charge-sheet and documents had been supplied to accused Lekhraj as was contemplated under S. 207 Cr.P.C. for the simple reason that there was a final report alongwith the charge - sheet submitted against other accused persons in the same case and that was neither accepted nor could be accepted without notice to the complainant. The complainant who was also present in the Court moved a protest petition and therefore, the entire case was open before the Magistrate prior to the stage of taking cognizance more particularly when complainant had come out with a specific case that offence different than the one mentioned by the police in the charge-sheet, are made-out. This protest petition required a disposal prior to taking of the cognizance and as such supply of the copy would not make the court functus officio. This protest petition required a disposal prior to taking of the cognizance and as such supply of the copy would not make the court functus officio. On the contrary, according to me supply of the copy to the accused in this case has advanced the cause of justice and is in consonance with the principles of natural justice because accused could make submission before the learned Magistrate as to whether cognizance for any other offence on the given evidence could be taken or not? The other persons who were alleged to have participated in the crime could have had no grievance by that time. 22. The argument of the learned counsel for the petitioners therefore, that the learned Magistrate has exceeded his jurisdiction can not be accepted. I, therefore, see no reason to interfere with the proceedings at this stage under S. 482 Cr.P.C. 23. However, in the given circumstances of the case, where the final report has twice been given against the accused the ends of justice would meet in case it is directed that on their appearance before the learned Magistrate, the accused persons shall be released on bail, provided each one of them executes a personal bond in the sum of Rs. 5,000/- with one surety in the like amount for their appearance in the Court of learned Magistrate or the trial-court, as the case may be. It is also made clear that nothing mentioned in this order of the orders passed by the courts-below, would be taken as expression of opinion on merits of the case while hearing the arguments for change by the trial-court. The courts-below, shall peruse the record objectively as is required by law and decide the question as to whether the charges should be framed or not and if to be framed, for which offences. 24. With the aforesaid observations, this miscellaneous petition is disposed-of.Anticipatory bail granted. *******