Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.27344 of 2010 ====================================================== 1. Chalta Devi W/O Suresh Bind @ Kailu Bind 2. Mamta Devi W/O Sadhu Bind both residents of Thalpura, P.S. Masaurhi, Distt-Patna. .... .... Petitioner/s Versus State Of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. A. Sharma, Adv. For the Opposite Party/s : Mr. M. Haque, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 4 11-04-2012 Petitioners, Chalta Devi and Mamta Devi have challenged order dated 14.08.2007 passed by SDJM, Masaurhi, Patna in connection with Masaurhi P.S. Case No. 115/2007, G.R. No.220/2007 whereby and whereunder they along with others have been summoned to face trial for an offence punishable under [STATUTE] . 2. Mukhiya Bind gave his fardbeyan on 23.04.2007 disclosing that his mother forbidden his uncle not to pass through her land along with bucket of soil which he dug from the field of Baba Mian. The aforesaid sermon was not liked by his uncle and on account thereof, began to assault his mother. On protest made by his mother, other family members, Chalta Devi and Mamta Devi, Sadhu Bind, Bhajju Bind, Ranju Bind @ Raju brutally assaulted his mother and further squeezed her body on account of 2 which she became unconscious. She was lifted for treatment but succumbed. After registration of the case, police took up investigation and after completing the same charge sheet was submitted only against Suresh Bind @ Kailu Bind while against the remaining accused investigation was shown to continue. The learned Chief Judicial Magistrate took cognizance of an offence and summoned all the accused persons as a result of which same has been put to challenge. 3. Contention on behalf of the petitioners is that the order impugned is bad in law as well as on facts, hence is fit to be set aside. Further submitted that the learned lower court took wrong procedure in summoning the petitioners including others at the stage when investigation against them save and except Kailu was going on. That means to say, the matter was well being proceeded in accordance with Chapter XII of the Cr.P.C wherein there was no scope for the Magistrate to encroach upon the powers of the Investigating authority. Further submitted that the police after concluding investigation submitted final report against the petitioners and others subsequently and that made the order impugned further illegal because of the fact that the learned lower court by way of passing of impugned order refrained itself from passing any order judiciously over the final report submitted by 3 the police. As such, the order impugned is bad and is fit to be quashed. 4. On the other hand, learned APP opposed the prayer and submitted that since time immemorial, it has been decided conclusively that Magistrate is not at all mere a puppet while considering the police report. He may accept, may not accept. Options are always available and the learned lower court had exercised such option. Therefore, the order impugned is in accordance with law. 5. If any case is instituted, be it a cognizable or non cognizable offence, the investigation commences. However, for registration of non cognizable offence certain precautions are there. That means to say, permission of the Magistrate is required. After conclusion of the investigation police report in accordance with Section 173 of the Cr.P.C. is furnished before cognizance taking court in the proforma so prescribed therein. The requirements which the I.O. are bound to furnish are as such:- a. Name of the parties. b. Nature of information c. Name of the persons who appear to be acquainted with the circumstances of the case witnesses d. Whether any offence appears to have been communicated and, if so, by whom e. Whether the accused has been arrested 4 f. Whether he has been released on his bond and if so whether with or without sureties g. Whether he has been forwarded in custody under Section 170 Cr.P.C. 6. The aforesaid information along with case diary as soon as is placed before the cognizance taking court, now it depends upon the cognizance taking court to accept the report in its entirety or differ therefrom. Therefore post police report stage is exclusively commanded by the cognizance taking court who is expected to deal with the police report choosing one of options already available before it in accordance with law. 7. Even if, having the accused not sent up but in case the materials collected and available in the case diary suggest their active involvement, then in that event, the cognizance taking Magistrate happens to be within its jurisdiction to summon those persons because the obligation of cognizance taking court is after receiving report in accordance with Section 173 Cr.P.C happens to be taking cognizance of an offence and then to identify the accused responsible for the same. Whether the investigation is pending or subsequently final report has been submitted against those persons is of no consequence because once cognizance has been taken, then the aforesaid hurdles are 5 bound to extinguish. 8. In Raghubans Debey v. State of Bihar (1967)2 SCR 423 at para 9 it has been held:- “ In our opinion once cognizance has been taken by the magistrate, he takes cognizance of an offence and not the offender. 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 additional accused is part of the proceeding initiated by his taking cognizance of an offence.” 9. The aforesaid legal principle has also further been subject to scrutiny by three Judges’ Bench of the Hon’ble Apex Cour

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.