JUDGEMENT 1. In the instant application the petitioners pray for quashing the order dated 11.10.2001, passed in G.R. No. 46/99 by S.D.J.M., Birpur, whereby he has taken cognizance of offence under Sections 147, 148, 307, 504 of the Penal Code and Section 27 of the Arms Act and summoned the petitioners to face trial and also the order dated 31.5.2007 passed in Cr. Revision No. 180/01 whereby the revisional court refused to interfere with the order taking cognizance. 2. On the written statement of one Raghunandan Yadav, Raghopur P.S. Case No. 8/99 under Sections 147, 148, 380, 436, 307 and 504 of the Penal Code dated 28.1.1999 was registered against 21 named accused persons. The allegation was that all the accused persons armed with deadly weapons attacked the prosecution side, as a result of which quite a number of people sustained both firearm and other injuries. The police after investigation submitted charge-sheet no. 18 of 2001 dated 3.5.2001 under Sections 147, 148, 307, 504 of the Penal Code and Section 27 of the Arms Act against eight (8) F.I.R. named accused and one Shatrughan Sada, while keeping investigation against the rest of the 12 named accused persons pending. 3. The Magistrate thereupon vide his order dated 21.5.2001 took cognizance of offence under Sections 147, 148, 307, 504 of the Penal Code and summoned the 9 accused persons against whom investigation was complete and charge-sheet was submitted. It is submitted that soon thereafter the police completed invesligation against the remaining 12 accused and submitted final form in their favour. 4. However, the learned Magistrate vide his order dated 10.12.2001 differing with police report summoned the remaining 12 F.I.R. named accused, who are petitioners here, to also face trial under Sections 147, 148, 307, 504 of the Penal Code and Section 27 of the Arms Act. The petitioners challenged the order dated 10.12.2001 summoning them to face trial in revision before the Sessions Court which was dismissed on 31.5.2007 vide Criminal Revision No. 180 of 2001. 5. The petitioners have assailed the impugned orders passed by both the Magistrate and the revisional court on the ground that a Magistrate cannot issue summon in sessions triable case, more so when final form has been submitted in their favour. 5. The petitioners have assailed the impugned orders passed by both the Magistrate and the revisional court on the ground that a Magistrate cannot issue summon in sessions triable case, more so when final form has been submitted in their favour. In support of his submission, learned counsel has relied upon a decision of this court in the case of Ram Nandan Singh @ Ram Nandan Yadav vs. State of Bihar, reported in 2007(2) P.L.J.R. 825. In the aforesaid case, the learned Single Judge held that a Magistrate cannot issue process against a person who has not been charge-sheeted in a sessions triable case and can be arrayed as an accused only in exercise of power under Section 319 Cr.P.C. In coming to the aforesaid view, the learned Single Judge relied upon three Judges bench cases in Ranjit Singh vs. State of Punjab, reported in (1998)7 SCC 149 ; Kishori Singh & Ors. vs. State of Bihar & Anr., reported in (2004) 13 SCC 11 and another three Judges Bench case in the case of Dharampal Singh vs. State of Haryana & Ors., reported in (2004)13 SCC 9 . 6. A similar issue, whether a Magistrate can differ with the police report and summon a person not charge-sheeted in sessions triable case, also cropped up in the case of Janeshwar Singh vs. State of Bihar. Learned Single Judge differing with view of learned Single Judge in the case of Ram Nandan Singh (supra) referred the case to the Division Bench. 7. The Division Bench after considering various judgments of the Honble Apex Court disagreed with the view taken by the learned Single Judge in the case of Ram Nandan Singh (supra). The Division Bench in para-8 of its judgment (Janeshwar Singh vs. State of Bihar), reported in 2008(3) P.L.J.R. 28 held as follows: "8. Hence with due respect to the learned Single Judge who decided the case of Ram Nandan Singh vs. The State of Bihar, we find ourselves in disagreement with the view that the Magistrate cannot issue process against a person who has not been charge- sheeted by the police. We are constrained to hold that the said judgment does not lay down the law correctly and the relevant provision of the Cr.P.C. and several judgments of the Apex Court and this Court indicated above were not taken into consideration in that judgment." 8. We are constrained to hold that the said judgment does not lay down the law correctly and the relevant provision of the Cr.P.C. and several judgments of the Apex Court and this Court indicated above were not taken into consideration in that judgment." 8. The Division Bench further observed that the judgment in the case of Ram Nandan Singh (supra) was not decided on the basis of power available to the Magistrate under Section 190 Cr.P.C, but on the basis of scope of power under Section 319 Cr.P.C. The learned Single Judge who delivered the judgment in the case of Ram Nandan Singh (supra) failed to correctly notice the issue. The Division Bench further observed that the judgments of the Apex Court noticed by the learned Single Judge were an authority on the proposition that power under Section 319 Cr.P.C. can be exercised only on the basis of evidence collected during the trial but not on proposition that at the stage of cognizance a Magistrate cannot differ with the opinion of the police so as to proceed even against a person not charge-sheeted by the police. The power of the Magistrate to take cognizance regardless of the opinion of the police in the final report is clear from a catena of judgments of the Supreme Court as well as this court. It would be worthwhile to quote relevant extract from para-19 of the case of Abhinandan Jha vs. Dinesh Mishra, reported in 1968 SC 117: "19...........The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic. impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view." 9. Thus, in view of aforesaid proposition there is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c)." 10. Thus, in view of aforesaid proposition there is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c)." 10. A Special Bench of this court in the case of Kuli Singh vs. State of Bihar, reported in 1978 BLJR 377 [ 1978 PLJR 500] held that a Magistrate has full jurisdiction to differ with the conclusion of the police on receipt of a final report under Section 173 Cr.P.C. and can direct a person not named in the report or sent up in column 2 be put on trial in exercise of power under Section 190(1)(b) Cr.P.C. 11. The Apex Court has reiterated its view laid down in the case of Abhinandan Jha (supra); in the case of H.S. Baines, reported in 1980 SC 1883, Nathuni Yadav vs. State of Bihar, reported in 1998(3) P.L.J.R. 507, Minu Kumari vs. State of Bihar, reported in (2006)4 SCC 359 [: 2006(3) PLJR (SC)236], Dinesh Dalmia vs. C.B.I., reported in {2008)1 SCC (Cri.) 36. 12. From circumspection of the aforesaid judgments, it is apparent that a Magistrate while exercising power of cognizance under Section 190(1)(b) Cr.P.C. can differ with the police report and summon a person who has not been charge-sheeted or sent up for trial. The position would be no different, even if the case is one, which may be triable by a court of sessions. Section 190(1)(b) and Section 204(1)(b) of Cr.P.C. does not limit the power of a Magistrate to differ with police opinion in only cases triable by Magistrate to the exclusion of offences which are sessions triable. The provision of Section 204(1)(b) of Cr.P.C. which is quoted hereinbelow apparently illustrates the aforesaid proposition: "204. Issue of process (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be (a) xx xx xx xx (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction." 13. Section 204(1)(b) refers to warrant case as a whole and power of Magistrate to issue summon or warrant against accused to face trial. It does not prohibit a Magistrate from issuing summon or warrant whether it is a sessions triable case or a Magistrate triable case, if there is sufficient material to proceed regardless of conclusion of police. 14. On consideration of materials if a Magistrate finds that there is sufficient material to proceed against person or persons who have not been charge-sheeted in a case which is exclusively triable by a court of sessions, it can still take cognizance and summons such person to face trial. In other words, a Magistrate can differ with the police report in respect of cases, both triable by a Magistrate as well as a court of sessions. 15. The other submission of the petitioners that there was no sufficient material before the Magistrate for issuing summons against the petitioners as the police had submitted final report is also devoid of merit. I find from the order of the Magistrate as well as the order of the revisional court that there was prima facie materials for taking cognizance of offence against the accused petitioners. 16. In a case where a number of person have been made an accused, the police is at liberty to submit charge-sheet in respect of those against whom investigation is complete under Section 173(2) Cr.P.C. and to continue investigation against rest of the accused persons. It would be relevant to point out here that continuance of such investigation against remaining accused persons would be an investigation under Section 156(1) of Cr.P.C. itself and is distinct and different from further investigation provided under Section 173(8) which generally occasions when police obtains fresh evidence against an accused against whom report under Section 173(2) has been submitted or fresh evidence has come against a person who has not figured as an accused. It is not in dispute that police can file one or more charge-sheets in a case. The Magistrate is also at liberty to take cognizance and summon accused, charge-sheeted or sent up for trial. So far as the other accused against whom investigation has been kept pending, the Magistrate may adopt any of the two courses. It is not in dispute that police can file one or more charge-sheets in a case. The Magistrate is also at liberty to take cognizance and summon accused, charge-sheeted or sent up for trial. So far as the other accused against whom investigation has been kept pending, the Magistrate may adopt any of the two courses. The Magistrate may summon and proceed against accused also against whom investigation has been kept pending, if prima facie materials appear against them, as has been held in the case of State of Maharashtra vs. S.B. Dogre & Ors., reported in 1995 SCC (Cri.) 16. It would be equally within the jurisdiction of the Magistrate to postpone the issuance of summons against them and await completion of investigation and then to decide whether to proceed against them or not. 17. In the instant case the police had submitted charge-sheet against 8 named and one non-F.I.R. accused out of 21 F.I.R. named accused and had kept investigation pending against rest 12 of the named accused persons. The Magistrate took cognizance of offence and summoned 9 accused persons who were charge-sheeted in first police report under Section 173(2) Cr.P.C. On receipt of final report in respect of remaining 12 accused persons the Magistrate was in his right to summon them as well, being satisfied that there is prima facie material against them as well. 18. For the reasons stated above, I do not find any ground to interfere with the impugned orders. This application is accordingly dismissed. However, if the petitioners surrender and pray for bail, the same would be considered on its own merit, without being prejudice by the fact that this court declined to interfere with the order taking cognizance and issuance of summons to face trial.