Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.7482 of 2011 ====================================================== Rajendra Singh , son of Late Ram Kailash Singh, resident of village Aira, Police Station Karpi, District Arwal , at present Headmaster, Ghosi Middle School, District - Jehanabad. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Mahendra Sharma, son of Late Gurudeo Singh, resident of village Ghosidih, Police Station – Ghosi, District - Jehanabad. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 4 06-12-2012 Heard Sri Rama Kant Sharma, learned senior counsel, who was assisted by Sri Lakshmi Kant Sharma, learned counsel for the petitioner, learned Additional Public Prosecutor as well as Sri Sunil Kumar, learned counsel, who has appeared on behalf of informant / opposite party no. 2. The sole petitioner, while invoking inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 18.1.2011 passed by learned Chief Judicial Magistrate, Jehanabad, in Ghosi P.S. Case No. 229 of 2010, G.R. No. 2323 of 2010/ Tr. No. 1638 of 2011, whereby, learned Magistrate has taken cognizance of offence under [STATUTE] and directed for issuance of processes against Patna High Court Cr.Misc. No.7482 of 2011 (4) dt.06-12-2012 2/4 the accused persons including the petitioner. Short fact of the case is that opposite party no. 2 had apprehended one Sahajanand Prasad while he was carrying 20 Kilograms of rice from a Government School, where, petitioner was Headmaster. It was alleged by the informant that the person who was apprehended had disclosed that the said rice was kept in the School for the purpose of distribution of “Mid Day Meal” to the children of the School. It was further asserted that the apprehended person disclosed that on earlier occasions also he had carried rice from the School. The informant after apprehending Sahajanand Prasad produced him before the Police and filed a written report before the Police and on that report an F.I.R. vide Ghosi P.S. Case No. 229 of 2010 was registered on 24.10.2010 for offence under [STATUTE] . After registering F.I.R., investigation was conducted. However, during investigation case was not found true and as such, final report was submitted exonerating the accused persons including the petitioner. However, a protest petition was also filed by informant. The point as to whether protest petition was filed before submission of final report or after submission of final report is disputed by counsel for both the sides. However, the learned Magistrate, by the impugned order, Patna High Court Cr.Misc. No.7482 of 2011 (4) dt.06-12-2012 3/4 differing with the Police report took cognizance of offence and directed for summoning all the accused persons. Cognizance order was passed under [STATUTE] . While assailing the impugned order, Sri Sharma, learned senior counsel, submits that the man namely, Sahajanand Prasad, who was alleged to be apprehended by the informant, during investigation, had turned hostile and not supported the case of the informant. He has mainly assailed the order on the ground that when final report was submitted by the Police, the learned Magistrate was not required to simply ignore the Police report and pass order of cognizance without assigning any reason. He submits that in absence of any reason for differing with the Police report, the order of cognizance is liable to be set aside. Learned Additional Public Prosecutor as well as Sri Sunil Kumar, learned counsel for informant supports the order of cognizance. It was submitted that there is no infirmity in the order. According to Sri Kumar, the learned Magistrate while differing with the Police report has stated that he had perused the case diary, and thereafter, order of cognizance was passed. Meaning thereby, that reason was assigned by the learned Magistrate. Besides hearing learned counsel for the parties, I have Patna High Court Cr.Misc. No.7482 of 2011 (4) dt.06-12-2012 4/4 also perused the materials available on record. It is not in dispute that final report was submitted by the Police exonerating the accused persons including the petitioner. The court is of the opinion that once Police report is submitted exonerating the accused persons, in that event, while differing with the Police report and taking cognizance, it is mandatory on the part of the Magistrate to assign succinctly some reason. From perusal of the impugned order it is evident that no reason has been assigned. Only it has been indicated that learned Magistrate has perused the case diary, final report and materials available on record. Once final report is submitted, it is necessary on the part of the Magistrate to indicate some reason. There is no reason in the impugned order for differing with the Police report, and as such, the order is liable to be set aside. Accordingly, the impugned order i.e. order dated 18.1.2011 is hereby set aside and matter is remitted back to the learned Magistrate for passing order afresh. With above observation and direction, the petition stands allowed. Praful/- (Rakesh Kumar, J)

Applicable IPC Section: 409

Statute Text:
Section 409 of the Indian Penal Code. Criminal breach of trust by public servant or by banker, merchant or agent, etc. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.