Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.24 of 2011 ====================================================== Bachchan Singh @ Bachchan Kumar, Son of Late Babulal Singh, Resident of Village - Narhat, P.S. – Narhat, District – Nawadah; at present residing at Gopalpur House, New Area Nawadah, P.S. – Nawadah Town, District – Nawadah. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Neha Priyadarshni, Wife of Dileep Kumar Sinha, Resident of Sitara Bhawan, New State Bank of India, New Area, P.S. – Nawadah Town, District – Nawadah. .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 3 24-04-2012 Heard Sri Arun Kumar, learned counsel for the petitioner and Sri Shyam Kumar Singh, learned Additional Public Prosecutor. Despite valid service of notice on opposite party no. 2, the opposite party no. 2 has preferred not to appear. 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 27.08.2010 passed by Sri Jitendra Kumar, learned Judicial Magistrate 1st Class, Nawadah, in Nawadah Town P.S. Case No. 43 of 2008. The petitioner has also prayed for quashing of entire criminal prosecution arising out of the same case. The learned Magistrate by the order dated 27.08.2010 has taken cognizance of offence under [STATUTE] differing with Patna High Court Cr.Misc. No.24 of 2011 (3) dt.24-04-2012 2 / 4 2 the Police report. Learned counsel for the petitioner while assailing the order submits that two days prior to filing of F.I.R. in the present case, on the basis of written complaint made by the petitioner an F.I.R. vide Nawadah Town P.S. Case No. 40 of 2008 was registered on 12.02.2008 against elder brother of husband of the informant of the present case and other relatives on an allegation that the petitioner being care-taker of a house of an Army Officer was looking after the said premises and the relatives of the informant was trying to intrude over the property and on objection raised by him he was assaulted by the accused persons i.e. elder brother of the husband of the informant of the present case and others. Accordingly, F.I.R. vide Nawadah Town P.S. Case No. 40 of 2008 was registered on 12.02.2008 for offence under [STATUTE] , in which, according to learned counsel for the petitioner, Police after investigation submitted charge sheet. Two days thereafter, in a well designed manner, the informant of the present case wrote to the District Magistrate, Nawadah, in whose Office the informant was posted on an allegation that while she was getting a garage prepared on her ancestral land this petitioner and others came, abused and assaulted and while retreating ear-ring of wife of elder brother of Patna High Court Cr.Misc. No.24 of 2011 (3) dt.24-04-2012 3 / 4 3 the husband of the informant was taken away. Further, during investigation, the case was not found true and final report was submitted. The learned Magistrate after submission of final report, differing with the Police report has passed the order of cognizance. It was argued that without assigning any reason the learned Magistrate has disbelieved the Police report and proceeded with the case after taking cognizance of the offence. He submits that the order impugned is liable to be set aside in view of the law laid down by the Apex Court in AIR 1955 S.C. 196 (H.N. Rishbud and another, Appellants v. State of Delhi, Respondent). He submits that law has been reiterated by number of judgments and even in 2007(2) PLJR (Hiralal Gupta vs. The State of Bihar) it has been re-produced. On aforesaid ground it has been prayed to set aside the impugned order. It is true that after submission of final report a Magistrate is empowered to take cognizance differing with the Police report, but at the same time, while differing, it is required on the part of the Magistrate to succinctly assign reason. Without assigning reason, the order of cognizance differing with the Police report is not sustainable in the eye of law, particularly, in view of peculiar facts and circumstances of the case as well as in absence of any reason in the order of cognizance, the same is required to Patna High Court Cr.Misc. No.24 of 2011 (3) dt.24-04-2012 4 / 4 4 be interfered with. Accordingly, the order of cognizance dated 27.08.2010 passed by the learned Judicial Magistrate 1st Class, Nawadah, in Nawadah Town P.S. Case No. 43 of 2008, is hereby set aside and the petition stands allowed. Praful/- (Rakesh Kumar, J)

Applicable IPC Section: 323

Statute Text:
Section 323 of the Indian Penal Code. Voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.