JUDGEMENT Dipak Misra, J. 1. In this application preferred under Section 482 of the Code of Criminal Procedure (for short the Code), the petitioners have prayed for quashment of the order taking cognizance dated 4.12.2009 for offences punishable under Sections 304B, 201/34 of the Indian Penal Code (for short IPC) against the four accused persons including the petitioners in Hilsa P.S. Case No. 439/2008 which has given rise to G.R. No. 1331 of 2008. 2. The facts which are essential to be stated for adjudication of this application are that one Jayant Sharma, the informant, lodged an F.I.R. at Hilsa whereupon Hilsa P.S. Case No. 439/08 under Sections 304B, 201/34 IPC was registered and the criminal law was set in motion. The Investigating Officer after due investigation found that the death had occurred by burning and its complications. Accused Baijnath Sharma @ Anjani, a teacher in Lord Academy, had represented to the Superintendent of Police, Nalanda that he was at Patna on the date of occurrence and applied for grant of leave to the Principal of the School where he was working as a teacher on account of his brothers wife having met with an accident. The Superintendent of Police took note of the same and got the supervision matter reinvestigated and found that Sunita Devi and her husband Baijnath Kumar @ Baiju @ Anjani were at Patna on the date of alleged occurrence. The landlord of the house situate in Patna wherein the accused Baijnath Kumar @ Baiju @ Anjani was residing as a tenant had stated that the said accused had told him that his brothers wife had suffered burn injuries because of the incident happened due to bursting of cooking gas cylinder and the said accused had gone to see the victim at Patna Medical College & Hospital where the victim expired. The Superintendent of Police, Nalanda opined in the supervision note that the accused Baijnath Kumar @ Baiju @ Anjani and his wife Sunita Devi appeared to be innocent and, therefore, they were not sent up for trial. 3. Be it noted, a supplementary charge-sheet (no. 150/09) was submitted against the accused Umesh Singh, the father-in-law of the victim. In the said charge-sheet it was shown that accused Sunita Devi and her husband Baijnath Kumar @ Baiju @ Anjani were not sent up for trial. 4. 3. Be it noted, a supplementary charge-sheet (no. 150/09) was submitted against the accused Umesh Singh, the father-in-law of the victim. In the said charge-sheet it was shown that accused Sunita Devi and her husband Baijnath Kumar @ Baiju @ Anjani were not sent up for trial. 4. The learned Judicial Magistrate 1st Class, after referring to the charge-sheet no. 20 of 2009 and supplementary chargesheet no. 150 of 2009, has passed the order taking cognizance of offences punishable under Sections 304B/201/34 IPC against all the accused persons named in the First Information Report and transferred the case to the file of another Judicial Magistrate for further proceeding in accordance with law. 5. I have heard Mr. Nand Kishore Prasad No.-ll, learned counsel for the petitioners and Mrs. Pushpa Sinha, learned Additional Public Prosecutor for the State. 6. The learned counsel for the petitioners submitted that the learned Magistrate has taken cognizance in a mechanical manner without ascribing any reason why he has differed with the investigating report. It is urged by him that the Magistrate does not have the unfettered power to disagree with the opinion expressed by the Investigating Officer. It is his further submission that when there was an opinion of the supervisory authority that the petitioners were innocent there was no justification to arraign them as accused. 7. Mrs. Pushpa Sinha, learned counsel for the State, supported the order passed by the learned Magistrate contending, inter alia, that the learned Magistrate has perused both the charge-sheets and the F.I.R. and has come to the conclusion that an offence is made out against the accused persons. It is further urged by her that the plea of alibi is a question of fact to be established by the accused persons and when the Magistrate has disagreed to accept the same, as a matter of fact, no infirmity can be found with the said order. 8. Before I proceed to deal with the justifiability and defensibility of the order passed by the learned Magistrate, it is apt to note that it is well settled proposition of law that at the stage of taking cognizance of the offence by the Magistrate, the provisions contained under Section 190 of the Code are applicable. Section 190 of the Code provides that "the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence". Section 190 of the Code provides that "the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence". Upon receipt of the police report under Section 173(2) of the Code, the Magistrate has the authority to take cognizance of an offence under Section 190(1 )(b) of the Code even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the Investigating Officer and independently applying his mind to the facts that emerge or emanate from the investigation and taking into consideration the statements of witnesses examined by the police. 9. In this context I may refer with profit to the decision in the case of Raghubans Dubey V/s. State of Bihar, AIR 1967 SC 1167 wherein it has been held thus: "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 comes 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." 10. In this context I may also profitably refer to the decision in the case of Minu Kumari and Anr. V/s. State of Bihar and Ors., (2006)4 SCC 359 [: 2006(3) PLJR (SC)236] wherein a two-Judges Bench of the Apex Court while dealing with the powers of the Magistrate has expressed the view as under: "11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise: the report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take congnizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also, [see India Carat (P) Ltd. V/s. State of Karnataka [ (1989)2 SCC 132 : 1989 SCC (Cri.) 306 : AIR 1989 SC 885 )]." 11. In paragraph 21 in Minu Kumari (supra), while considering the factual matrix, their Lordships has held thus: "21. When the factual scenario is considered in the background of legal principle set out above, the inevitable conclusion is that the High Court was not justified in rejecting the application in terms of Section 482 of the Code. In paragraph 21 in Minu Kumari (supra), while considering the factual matrix, their Lordships has held thus: "21. When the factual scenario is considered in the background of legal principle set out above, the inevitable conclusion is that the High Court was not justified in rejecting the application in terms of Section 482 of the Code. This is a case when the cognizance was taken, summons were issued by mistake and the names of the appellants were also mentioned in the order dated 15.2.1999. Since the police have not found any material against the appellants, the Jearned CJM without following the procedure as indicated above could not have directed issuance of summons so far as they were concerned. There was no indication that learned CJM disagreed with the opinion of the investigating agency and therefore ordered issuance of summons. On the contrary, as noted by learned CJM later that it was a mistake, and, therefore, he had ordered to strike off the names of the appellants. The High Courts order is set aside. The names of the appellants shall be struck off from the array of accused persons." 12. In Horil Sao & Ors. V/s. The State of Bihar & Ors., 2002(1) PLJR 318 , Chandramauli Kr. Prasad, J. (as his Lordship then was) in paragraphs 17 & 18 has observed thus: "17. For the reasons stated above i do not have slightest doubt in mind that the learned Magistrate while exercising its power under Section 190 of the Code is not bound by the conclusion arrived at by the officer incharge of the police station in a case exclusively triable by Court of Sessions while submitting the report under Section 173 of the Code and in a case in which the materials collected during the course of investigation and forming part of the report under Section 173 Cr.P.C, prima facie, suggest complicity of the accused persons in the crime although named in the FIR but not charge-sheeted, still the Magistrate can differ with the conclusion and take cognizance of the offence. The Magistrate has such power under Section 190 of the Code. I hasten to add that although the police is master of investigation but what treatment has to be given to the report is in the domain of the Magistrate. 18. The Magistrate has such power under Section 190 of the Code. I hasten to add that although the police is master of investigation but what treatment has to be given to the report is in the domain of the Magistrate. 18. It is relevant to state here that the materials collected during the course of the investigation and forming part of the report under Section 173 Cr.P.C. indicate prima facie complicity of the petitioners in the crime and challenge to the order taking cognizance is not made on the ground that no such material exists." 13. In view of the aforesaid enunciation of law it is clear as crystal that the Magistrate can differ with the investigating report and take cognizance, of offences against the offenders, who have not been charge-sheeted. In the case at hand, the learned Magistrate has not indicated anything in the order why he has disagreed with the opinion of the investigating agency. As per the decision rendered in Minu Kumari & Anr. (supra), he has to independently apply his mind. No doubt, he has the jurisdiction to ignore the conclusion arrived at by the Investigating Officer, but the order must indicate at least, prima facie, that he has independently applied his mind to take cognizance in respect of certain other persons, who have not been sent up for trial. The order passed by the learned Magistrate, as is patent, does not indicate anything of that nature. There is totally non-application of mind. Therefore, the order taking cognizance as far as the present petitioners are concerned deserves to be set aside and, accordingly, it is so ordered. The learned Magistrate shall consider the material brought on record and, thereafter, proceed to pass appropriate orders as per law. 14. In the result, the application is allowed and the order passed by the learned Magistrate taking cognizance against the present petitioners, namely, Kumar Anjani @ Baijnath Kumar @ Baiju and Sunita Devi is set aside and the matter is remitted to the concerned Magistrate to consider the material afresh and pass appropriate orders in accordance with law.