Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.18057 of 2008 ============================================== 1. Madan Tiwary, son of Late Bachcha Tiwary. 2. Vishnu Kant Tiwary @ Pappu Tiwary, son of Madan Tiwary. Both resident of village-Pipra, P.S. Govindganj, District- East Champaran. .... .... Petitioners. Versus 1. The State Of Bihar. 2. Hakim Mian, son of Late Rahman Mian, resident of village-Ghinadah, P.S. Harsidihi, District-East Champaran. .... .... Opposite Parties. ============================================== Appearance : For the Petitioners: Mr. Arun Kumar Pandey, Advocate. For the State : Mr. Dashrath Mehta, A.P.P. For O.P. No.2 : Mr. Dhanendra Choubey, Advocate. ============================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL ORDER (Per: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA) ---------------- 6 30-01-2012 The petitioners have approached this Court invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order dated 30.1.2008 passed by the Chief Judicial Magistrate, Motihari, in Govindganj P.S. Case No.118 of 2007/Trial No.3044 of 2008, taking cognizance of the offence under Patna High Court Cr.Misc. No.18057 of 2008 (6) dt.30-01-2012 2 / 6 2 [STATUTE] against the accused-petitioners. 2. In brief, the case is that on the basis of the written report of the informant-opposite party no.2, Hakim Mian, Govindganj P.S. Case No.118 of 2007 was instituted on 28.10.2007 under [STATUTE] against the accused-petitioners. It is alleged by the informant-opposite party no.2 in the written report that his son, Saheb Alam, aged about 22 years, was driving the Commander Jeep for the last three years of the accused- petitioner no.1, Madan Tiwary, residing at his house. On 28.10.2007 at about 4 A.M. in the morning, the petitioner no.1, Madan Tiwary, came at the house of opposite party no.2 carrying the dead body on ambulance and informed him that his son, Saheb Alam, in the preceding night at about 10 P.M. had consumed the poison and he was taken for treatment but he could not be saved and died. It is further alleged by the informant-opposite party no.2 that he came in suspicion on the statement of the petitioner no.1, Madan Tiwary, because if his son, Saheb Alam, had consumed poison, why his sasural’s people, whose village are situated nearby were not informed. As such, he is in Patna High Court Cr.Misc. No.18057 of 2008 (6) dt.30-01-2012 3 / 6 3 believe that his son, Saheb Alam, has been murdered by the petitioner no.1, Madan Tiwary and his son, petitioner no.2, Vishnu Kant Tiwary alias pappu Tiwary. 3. The police on investigation submitted the final form finding the lack of evidence before the court of the Chief Judicial Magistrate, Motihari. Thereafter, the Chief Judicial Magistrate, Motihari, differing with the final form took the cognizance of the offence under [STATUTE] against the accused- petitioners, named in column 16 of the F.I.R., differing with the final form submitted by the Investigating Officer. 4. Learned counsel appearing on behalf of the petitioners made submission that there is nothing against the petitioners in the case diary except suspicion raised by the informant-opposite party no.2 and the witnesses, as examined in course of investigation, but the Chief Judicial Magistrate, Motihari, illegally took the cognizance of the offence under [STATUTE] against the petitioners differing with the final form submitted by the Investigating Officer. It has also been submitted that the paragraphs of the case diary, as detailed in the impugned order, are nothing but the statements of the Patna High Court Cr.Misc. No.18057 of 2008 (6) dt.30-01-2012 4 / 6 4 informant-opposite party no.2 and the other witnesses in which only suspicion has been raised against the petitioners to commit the murder of the deceased, Saheb Alam, the son of the informant-opposite party no.2. 5. On the other hand, learned A.P.P. for the State while made submission that the points, as raised by the learned counsel appearing on behalf of the petitioners, can be raised at the time of framing of charge, but conceded that in the case diary the informant-opposite party no.2 and the witnesses have only raised suspicion against the petitioners. Learned counsel appearing on behalf of the opposite party no.2 also conceded that except suspicion raised by the informant-opposite party no.2 and the witnesses, as detailed in the impugned order, there is nothing in the case diary to show the prima facie case against the petitioners. 6. On perusal of the impugned order, it appears that the Chief Judicial Magistrate, Motihari, differing with the final form, as submitted by the Investigating Officer, has taken the cognizance of the offence under [STATUTE] against the petitioners, named in the F.I.R., detailing the paragraphs 3, 4, 5, 19, 20 Patna High Court Cr.Misc. No.18057 of 2008 (6) dt.30-01-2012 5 / 6 5 and 51 of the case diary. Paragraphs 3, 5, 19 and 20 of the case diary are the statements of the informant and the other witnesses, who only raised suspicion against the petitioners. Paragraph-4 of the case diary is the inquest report of the deceased, Saheb Alam, which does not disclose about the external injury and similarly, in paragraph 51 of the case diary, in which the post-mortem report is detailed, no external injury was found and the opinion regarding the cause of the death of the deceased was kept reserve till the receiving of the viscera report. 7. It is no doubt that on submission of the final form by the Investigating Officer finding the case false, the Magistrate/court, having jurisdiction to take cognizance, may differ with the final form and take the cognizance of the offence and summon the accused under Section 204 o

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.