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TMI Blog2003 (12) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 12753 of 1999) and Cri. Misc. Case No. 5021 of 1999 filed under Section 482 CrPC by the accused. The High Court allowing both the petitions has further held that the order taking cognizance has become non est. The State is in appeal on grant of special leave. In order to appreciate the respective contentions, it is necessary to notice, in brief, the facts as under: For the period from 1980 to the end of 1989, the respondent was a Minister holding different portfolios from time to time. On 29-9-1990, a case under Section 13(2) read with Section 13(1)(e) of the Act for acquisition of disproportionate assets was registered against the respondent. The period under consideration was from June 1980 to November 1989. On 26-3-1991, on comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te assets acquired by Mr H. Khan is computed to ₹ 47,029.89, which is 2.38% of his total income. From the above facts it is ascertained that there is no material to prove the charge of acquisition of disproportionate assets by Shri H. Khan during the check period and as such this case is submitted to the court with a prayer to accept it as final report true insufficient evidence (sic) under Section 13(2) read with Section 13(1)(e) of the PC Act, 1988." The Special Judge, in terms of the order dated 20-9-1999, after noticing the background including the submission of the first and the second report and also after examining the law on the subject, came to the conclusion of existence of the prima facie case requiring framing of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code to have acted in that manner. The question need not detain us for long because the power of a Magistrate to take cognizance of an offence under Section 190(1)(b) of the Code even when the police report was to the effect that the investigation has not made out any offence against an accused has already been examined and set out by this Court in Abhinandan Jha V/s. Dinesh Mishra and H.S. Bains V/s. State. In Abhinandan Jha V/s. Dinesh Mishra the question arose whether a Magistrate to whom a report under Section 173(2) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the police. This Court held that the Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the case against the accused was not true and that the case may be dropped. The learned Magistrate disagreed with the conclusion of the police and took cognizance of the case under Sections 448 and 506 of the Indian Penal Code and directed the issue of process to the accused. Thereupon, the accused moved the High Court for quashing the proceedings before the Magistrate. As the High Court declined to interfere, the accused approached this Court by way of appeal by special leave. Various contentions were advanced on behalf of the accused and one of them was that the Magistrate was not competent to take cognizance of the case upon the police report since the report was to the effect that no offence had been committed by the accused. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police." 16. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge can be faulted nor can it be said that the second report was altogether ignored by the Special Judge as was sought to be contended by Mr. Verma, learned Senior Counsel appearing for the respondent. What has been done by the Judge is to ignore and brush aside the conclusion in the second report so as to form an independent opinion on the facts emerging from the report that charge deserves to be framed against the respondent. The course adopted by the Special Judge is permissible in law. We do not wish to dwell in detail on facts lest any prejudice may be caused to the parties during the trial of the case. Further, too much cannot be made out from the observation made by the Special Judge in respect of the second report that it insults ..... X X X X Extracts X X X X X X X X Extracts X X X X
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