IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.46334 of 2007 1. BRAJESH PATHAK 2. Nitesh Pathak @ Chhotu @ Nitesh Kumar Both sons of late Niranjan Pathak 3. Manoranjan Pathak, son of Sri Prabhash Pathak 4. Sharad Chandra Thakur @ Bachua, son of Sri Suresh Chandra Thakur @ Bangtu Thakur 5. Nirmal Kumar Chaudhary @ Tumla, son of Late SachhidaNand Choudhary 6. Siwan Yadav son of late Subhuk Lal Yadav All are residents of village- Bharko, P. S. Amarpur, Dist. Banka. … Petitioners Versus 1. STATE OF BIHAR 2. Atul Mishra s/o Late Shabha Kant Jha, resident of Bharko, P. S. Amarpur, Dist. Banka. … Opp. Parties For the petitioners ..Mr.Shailendra Kr. Singh, Adv. ..Mr. Jyoti Ranjan Jha, Adv. For the State ..Mr. Kalyan Shaukar, APP For the informant ..Mr. Mr. Ranjan Kumar Jha, APP ----------- 4. 08.09.2009. Heard counsel for the petitioners and counsel for the opposite party no. 2. Assailing the impugned order taking cognizance under Sections 147, 148, 149, 341, 323, 325, 307 and 379 of the Indian Penal code, counsel for the petitioners has raised only two grounds namely;- (i) learned magistrate has committed an error in looking into the materials brought on record in the protest petition filed by the complainant while taking cognizance on the basis of a police report. (ii) Even if it be assumed that learned magistrate has only differed 2 with the opinion of the police submitting final form, there is at least nothing in the case-diary to substantiate the allegation in the first information report. Counsel for the opposite party no. 2 would strongly contest the aforementioned point no. 1 pressed by counsel for the petitioner on the ground that the procedure followed for taking cognizance by the magistrate was one only in which he had only looked into the materials brought by the police in course of investigation. He could not satisfy this court on the second point namely that there is anything in the case- diary to connect the petitioners with the offence alleged save and except the version of the informant himself. This court having considered the aforementioned submissions as also the material on record is satisfied that the learned magistrate did not commit any error in differing with the police report and that a reference made of protest petition by him is only casual in nature inasmuch as he had neither examined the complainant on solemn 3 affirmation nor has proceeded to hold enquiry in terms of Section 202 Cr.P.C.. From the perusal of records it is infact more than clear that whatever orders passed by him was based only on the appreciation of the materials brought on record by the police in course of investigation in terms of section 173(2) of the code of criminal procedure. To that extent learned magistrate was fully justified in doing so inasmuch as he could easily differ with the opinion of the police and proceed to take cognizance on the basis of materials available in the case-diary. The snag however in the impugned order emerges from the fact even though there is absolutely no material in the case-diary to support the allegations of the opposite party no. 2 in his first information report yet the learned magistrate had recorded that from the materials in the case-diary and the connected injury report there was sufficient material for at least taking cognizance against the petitioners. This aspect of the matter gets fully exposed by reading of the entire case-diary wherein none of the 4 witnesses in course of being examined by the police had supported the allegation of prosecution. In that view of the matter at least there would be nothing in the case- diary to support the allegation as brought forward by opposite party no. 2 and the conclusion arrived by the police in submitting final form cannot be faulted only because it is alleged that there were laches on the part of the police in conducting a fair investigation. Learned magistrate if he had so found could hawed directed the police for conducting further investigation instead of proceeding to take cognizance on the basis of appreciation of non-existing material in the case-diary. The impugned order in that view of the matter cannot therefore be sustained and must be set aside. Having held so this, Court is however conscious that a protest petition against the investigation and final report filed by the police had already been filed by opposite party no. 2 and that was also on record at the time of taking cognizance. Therefore once this court has set aside the 5 impugned order taking cognizance based on police report, it would give liberty to opposite party no. 2 to press this protest petition and in case the court below is satisfied with regard to averment made in the protest petition as also from the materials to be brought on record in course of enquiry in terms of section 202 Cr.P.C., learned magistrate will pass an appropriate order on such protest petition in accordance with law at an early date keeping in view that the trial of the same occurrence on the version of the petitioners being Sessions Trial No. 882 of 2007/958 of 2007 is pending before learned ADJ, FTC-IV, Banka or before some transferee court. In that view of the matter, if opposite party no. 2 would get himself examined on solemn affirmation and also produce his witnesses for enquiry under Section 202 Cr.P.C. within a period of two months from the date of receipt/production of a copy of this order, the court below will pass a fresh order in next one month and in the event the court below will take 6 cognizance of the offence alleged in the complaint petition of opposite party no.2 its trial and disposal would also be made simultaneously along with the aforementioned Sessions Trial No. 882 of 2007/958 of 2007. If however no cognizance is taken within the aforesaid period of three months, the trial of Sessions Trial No. 882 of 2007/958 of 2007 shall proceed without awaiting for the further proceeding of the complaint-cum- protest petition filed by opposite party no. 2 in this case. For a period of aforesaid three months only the trial of Sessions Trial No. 882 of 2007/958 of 2007 shall remain stayed. With the aforementioned observations and directions, this application is finally disposed of. Let a copy of this order be communicated to the court below through Fax if the cost thereof is deposited by the Counsel for the opposite party no. 2. kanchan (Mihir Kumar Jha, J.)