Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.39591 of 2010 ====================================================== 1. Md. Chhedi , Son of Md. Aaziz 2. Md. Naim Akhtar @ Md. Naim, Son of Md. Sidik Both are residents of Village- Dumariyahi, Police Station- Khajauli, District-Madhubani .... .... Petitioner/s Versus The State Of Bihar .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER --------------------- 2 07-05-2012 Heard Sri Anant Kumar Bhaskar, learned counsel for the petitioners and learned Addl. Public Prosecutor. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure , have prayed for quashing of an order dated 01.06.2009 passed by learned Chief Judicial Magistrate, Madhubani in G.R. No.99 of 2007 arising out of Khajauli P.S. Case No.05 of 2007. By the said order, the learned Magistrate has taken cognizance of offence under [STATUTE] . Learned counsel for the petitioners submits that though the petitioners were named accused persons but during the investigation, no material was found against the petitioners and, thereafter, petitioners were not sent up for trial. Learned counsel for the petitioners has drawn my attention to Annexure-2 to the Patna High Court Cr.Misc. No.39591 of 2010 (2) dt.07-05-2012 2 / 3 2 petition i.e. the police report submitted after completion of the investigation. He submits that though chargesheet was submitted against five accused persons, the police had specifically exonerated both the petitioners. He further submits that the learned Magistrate without assigning any reason has taken cognizance of offence and directed for summoning the petitioners also. According to learned counsel for the petitioners, since the police after investigation had exonerated the petitioners, learned Magistrate was not authorized to take cognizance of offence. He has secondly submitted that even the learned Magistrate has not assigned any reason, while differing with the police report. On aforesaid grounds, learned counsel for the petitioners has prayed for quashing of the order of cognizance. Learned Addl. Public Prosecution has vehemently opposed the prayer of the petitioners. He submits that in the F.I.R. there is specific allegation against both the petitioners and the police after investigation though submitted chargesheet against other accused persons exonerated the petitioners. On going through the material available on record, the Court is satisfied that the learned Magistrate has committed no error, while differing with the police report so far petitioners are concerned. The learned Magistrate, while differing with the police Patna High Court Cr.Misc. No.39591 of 2010 (2) dt.07-05-2012 3 / 3 3 report, has categorically stated that he has examined the F.I.R., Chargesheet, Injury Report and Case diary. The learned Magistrate has specifically referred to certain paragraphs of the case diary. So, I am of the view that the learned Magistrate has briefly stated the reason for passing order of cognizance. So far passing order of cognizance against the petitioners while differing with the police report is concerned, time without number it has been held that a Magistrate is well competent to pass order of cognizance and summon a person not forwarded by the police even differing with the police report. I do not find any merit in the present petition. Accordingly, the petition stands dismissed. Keeping in view the fact that the occurrence had taken place in the month of January, 2007, while dismissing the petition, it is desirable to direct the court below to proceed with the case expeditiously so that the case may come to its logical end without unnecessary delay. Let a copy of this order be sent to the court below forthwith. NKS/- (Rakesh Kumar, J)

Applicable IPC Section: 148

Statute Text:
Section 148 of the Indian Penal Code. Rioting armed with deadly Weapon. Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.