IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4798 of 2007 1. Amaresh Kumar Raw ,Son of Chaturbhuj Prasad Raw 2. Subodh Kumar Raw, Son of Late Bhuvneshwar Prasad Raw 3. Chaturbhuj Prasad Raw , Son of Late Gajadhar Prasad Raw 4. Nand Kishore Raw, Son of Late Mumeshwar Prasad Raw 5. Kailash Prasad Raw, Son of Kamleshwar Prasad Raw 6. Subhash Prasad Raw, Son of Kameshwar Prasad Raw, All residents of Village Kaskari, P.S. Rajoun, District-Banka. -----------------------Petitioners. Versus 1. THE STATE OF BIHAR 2. Dulari Devi W/O Late Mahendra Prasad Singh, of Village- Laskari, P.S. Rajoun, District-Banka ---- Opp.Parties. ----------- For the petitioners : M/S Anjana Prakas, Sr. Advocate , and Sanjay Kumar Jha, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : M/S Janardan Kr. Singh, and Dipak Kumar No.1, Advocates. ----------- O R D E R The six F.I.R. named accused of Rajoun P.S. Case No. 135 of 2005 have prayed for the quashing of the order dated 25.11.2006 passed therein by the learned Chief Judicial Magistrate, Banka , whereby he has taken cognizance against the petitioners under Section 302/34 I.P.C. after differing from the final report submitted by the Investigating Officer. One Dulari Devi ,impleaded herein as Opp.Party no.2 , filed Complaint Case No. 839 of 2005 , which was transmitted to the concerned Police Station under Section 156 (3) Cr.P.C. and on the basis thereof Rajoun P.S. Case No.135 of 2005 came to be registered against the petitioners herein under Section 302/34 I.P.C. As per allegations made in the complaint petition at about 5.00 A.M. on 9.6.2005, petitioner nos. 1 and 6 came to her house calling for - 2 - her son ,Kailash Singh, aged about 14 years, whereupon she is said to have informed them of his having gone out to answer the call of nature , on hearing of which they left. It is said that when her son did not return till 10.00 A.M. she went out searching for him and in course thereof she heard alarming cries. She went there and found an assemblage of people and her son lying dead. She suspected the hands of the petitioners who allegedly dashed her son to death. It is stated that her son was a labourer with the petitioners and as there had been some hassles over payment of wages, she had forbidden her son to work with the petitioners. It is alleged that although the police arrived at the place of occurrence at about 11.00 A.M., she informed them about the occurrence and although they took her thumb impression on a blank-sheet of paper, no action was taken which compelled her to file the complaint petition. It appears that after due investigation, police found the case to be false and submitted a final report on 7.11.2006, whereafter the complaint case appears to have been filed. Assailing the impugned order, it has been submitted that for the same occurrence U.D. Case no.7 of 2005 was filed by the informant Dulari Devi wherein she had stated that her son had died due to fall from a mango tree and even in course of investigation and in the supervision note of the Dy. Superintendent of Police it has come to light that the son of the informant died due to fall from a mango tree and the petitioners had no hand. It was also submitted that the post mortem report did not support the present case. The grievance of the petitioners is that the learned Magistrate - 3 - though making a reference of U.D. Case No.7 of 2005 took cognizance in a non-chalant and routine manner without applying his mind and for this the petitioners were being unnecessarily prosecuted. The impugned order of the learned Chief Judicial Magistrate, Banka, discloses that in view of the statements of the witnesses under Section 161 Cr.P.C. as available in paragraph nos. 4 to 11 of the case diary which showed the presence of positive materials to indicate the involvement of the accused persons in the aforesaid crime, he had differed with the final report submitted by the police. Admittedly , cognizance is taken of the offence and not against the offenders and the act of taking cognizance ordinarily means that the Magistrate has come to the conclusion that there is a case to be inquired into and for the reasons assigned he may prefer to ignore the conclusion of the police regarding the credibility of the witnesses and take cognizance of the offence on the basis of the statements of the witnesses , as recorded by the police, since he is not bound by the opinion formed by the Investigating Officer. He is also not bound by the opinion formed by the Investigating Officer after investigation and report submitted under Section 173 (2) Cr.P.C. For the reasons stated above, I find no merit in this application which is dismissed. However, the petitioners may raise these issues at the time of framing of charges. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 24th June,2009 Nawal Kishore Singh/A.F.R.