Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 25441 of 2010 ================================================== 1. Md. Shakil Hassan son of Sri Aziz Hassan. 2. Siyaul Haque @ Thupthup son of Shahabuddin @ Ziaul Haque. 3. Shahabuddin @ Ziaul Haque son of Zohrul Haque. All residents of Mohalla Baiganabad P.S. Biharsharif in the district of Nalanda. .... .... Petitioners. Versus 1. The State of Bihar 2. Babar Khan S/o Late Jahid Hussain r/o Vill : Baiganabad P.S.: Biharsharif, District: Nalanda. .... .... Opposite Parties. ================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 5. 11-10-2012 Heard Sri Akhileshwar Prasad Singh, learned senior counsel, who was assisted by Smt. Anita Kumari Singh, learned counsel for the petitioners, Sri Gauri Shankar Gupta, learned Addl. Public Prosecutor as well as learned counsel appearing on behalf of informant/opposite party no. 2. Three 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 03-07-2010 passed by learned Chief Judicial Magistrate, Nalanda at Biharsharif in Bihar P. S. Case No. 43 of 2010. By the said order, learned Magistrate has taken cognizance of offence under Sections 341, 323, 379, 504 & 34 Patna High Court Cr.Misc. No.25441 of 2010 (5) dt.11-10-2012 2 / 7 2 of the Indian Penal Code. Short fact of the case is that opposite party no. 2 initially filed a complaint in the court of learned Chief Judicial Magistrate, vide Complaint Case No. 188(C) of 2010 against petitioners & others on an allegation of commission of offences under [STATUTE] . It was alleged in the complaint petition that when the complainant demanded remuneration from the petitioner no. 1 for repairing work of his motorcycle, the accused persons (petitioners) abused him. While he was returning, after closing the repairing shop, on way, he was intercepted by the petitioners and assaulted. They (petitioners) were also demanding RANGDARI of Rs. 10,000/- from the complainant. It has also been alleged that accused persons forcibly snatched huge amount from the informant/opposite party no. 2. The said complaint was referred to the police under Section 156(3) of the Cr.P.C. for its registration and investigation and thereafter, an F.I.R., vide Bihar P. S. Case No. 43 of 2010 was registered for the offence under Sections 341, 323, 379, 504, 506 and 34 of the Patna High Court Cr.Misc. No.25441 of 2010 (5) dt.11-10-2012 3 / 7 3 Indian Penal Code. After registering F.I.R., police thoroughly investigated the case. During investigation, police found that the petitioners were falsely implicated by the informant. It was further found that due to accident, the informant had received some injuries and thereafter, a complaint was filed on 05-03-2010 regarding commission of alleged offence occurred on 03-03-2010 at about 6:00 PM. Police, after thorough investigation, submitted final report on 31-03-2010, exonerating the petitioners and also recommended to prosecute the informant for the offence under [STATUTE] . However, the learned Magistrate, differing with the police report, has passed order of cognizance, which has been impugned in the present petition. The learned Magistrate, differing with the police report, has taken cognizance of offence under [STATUTE] . Learned senior counsel for the petitioners, while assailing the impugned order, submits that in the entire case diary, save and except material showing involvement of the Patna High Court Cr.Misc. No.25441 of 2010 (5) dt.11-10-2012 4 / 7 4 petitioners in the statement of the informant/opposite party no. 2 in paragraph no. 5 of the case diary, there is nothing to show complicity of the petitioners. He further submits that during investigation, injury report of the informant/opposite party no. 2 was obtained, which is in the case diary. From injury report, it is evident that allegation, made in the F.I.R., regarding sustaining injury by the informant/complainant on face and head, is not in consonance with allegation made in F.I.R. In the injury report, besides injury on the face & head, injuries on two legs of complainant were also found. He further submits that during investigation, witnesses had stated that the informant had received injury in a motorcycle accident and thereafter, false case was concocted and filed. Further, during investigation, it has also come that petitioner no. 1 was a Government Teacher. He further submits that learned Magistrate, while differing with the police report, has also referred to paragraph no. 13 of the case diary, which also suggests nothing but regarding altercation between the parties and as such, it was submitted that learned Patna High Court Cr.Misc. No.25441 of 2010 (5) dt.11-10-2012 5 / 7 5 Magistrate, contrary to materials available on record, has passed order of cognizance differing with the police report. He further submits that once police, after investigation, submits report under Section 173 of the Cr.P.C., the report may not be treated as waste paper. The learned Magistrate is well competent to pass order, differing with the police report, but in that event, it is necessary for the learned Magistrate to assign some reasons. The reason, which has been assigned in the impugned order, is contrary to the materials available in the case diary. On aforesaid grounds, he has prayed for quashing of the order of cognizance. Learned Addl. Public Prosecutor as well as learned counsel appearing on behalf of opposite party no. 2 have vehemently opposed the prayer of the petitioners. It was submitted that there is no illegality in the order of cognizance due to the reason that learned Magistrate, while differing with the police report, had assigned some reasons on the basis of materials available in the cas

Applicable IPC Section: 379

Statute Text:
Section 379 of the Indian Penal Code. Theft. Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.