IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC NO.825 OF 2007 SANTOSH KUMAR VS STATE & ORS ----------- 7 07.01.2009. Heard learned counsel for the parties. 2. In the instant writ petition, the petitioner prays for quashing the First Information Report and investigation of Civil lines Police Station case no. 104 of 2007, annexure 4 instituted for offence under sections 307 and 34 of the I.P.C. and section 25(1-b) A and 26 of the Arms Act lodged by Bishwanath Ram, Sub Inspector of Police, Civil lines Police Station. 3. The facts of the case in brief is as follows:- The petitioner lodged Civil Lines Police Station case no. 280 of 2005 dated 11.12.2005, annexure 1 for offence under sections 307/34 I.P.C. and 26 and 27 of the Arms Act against two accused persons, namely, Krishna Kumar and Shyam Mallah alleging therein that they tried to kill him while he had gone out of his house at 5 am to answer the call of nature with their arms. On hulla, the villagers arrived and apprehended the accused. Pistol and some cartridges were recovered from both accused. Police after investigation submitted final report finding the allegations not true against accused. The learned Chief Judicial Magistrate, vide order dated 9.5.2007 differed with the opinion expressed in the final report and took cognizance of the offence and summoned the accused to face trial. A day or two thereafter the Sub inspector, Civil Lines Police Station Gaya instituted aforesaid Civil Lines Police Station case no 104 of 2007 against the petitioner and others. The basis for lodging this case against the petitioner and others appears to be accentuated by the fact that the case filed by the latter against accused Krishna Kumar and Shyam Mallah have been found to be incorrect/false. - 2 - 4. Mrs Anjana Prakash, learned Senior counsel for the petitioner submits that there cannot be two parallel proceedings in respect of same offence. She further submits that final report filed in Civil Lines Police Station case no. 280 of 2005 dated 6.12.2006 has not been accepted by the trial court. The learned Magistrate differing with the opinion expressed in the final report took cognizance of the offence and summoned the accused persons to face trial. If the instant case is not quashed, both the petitioner as well the accused of petitioner’s case would be facing parallel proceedings in respect of same offence and occurrence. Learned counsel further submits that the appropriate course for the police would be to recommend prosecution under sections 182/211 I.P.C. in stead of lodging of an FIR against the petitioner and others for offence under the Arms Act. In support of his case, the petitioner relied upon a decision of this Court rendered in the case of Mohan Mishra Vs State of Bihar, reported in 1999(1) PLJR 426. Mohan Mishra had filed a case under Arms Act against some accused persons. The police in course of investigation found the allegation levelled by petitioner against others to be incorrect and in turn it found petitioner Mohan Mishra to be in possession of arms and submitted charge sheet for offence under sections 25(1-B)a, 26 and 35 of the Arms Act against him. The Magistrate took cognizance against Mohan Mishra and summoned him to face trial. Mohan Mishra filed quashing application stating therein that appropriate course for the police was to make recommendation under sections 182/211 I.P.C. for lodging a false case and not a substantive case under the provisions of Arms Act. The aforesaid case does not help the petitioner as this Court did not quash order taking cognizance under Arms Act on aforesaid - 3 - ground, rather remanded the case to the Magistrate to consider it afresh on basis of materials on record. The next contention of the petitioner that as Chief Judicial Magistrate, Gaya has taken cognizance against the accused in the case instituted by him being Civil Lines Police Station case no. 280 of 2005 it would prima facie appear that the case filed by him is true. In such situation, if the investigation in case against the petitioner continues and proceeds on subsequent FIR figuring him as an accused under the Arms Act, the same would produce an anomalous situation as there would be two parallel proceedings. The aforesaid contention of the petitioner does not appear sound. Mere taking of cognizance does not make a case true or false. The genuineness or falsity of the case would come to the fore only in course of trial. Police has filed substantive case under the Arms Act and it is a rival version of the occurrence. The allegations in subsequent FIR would show that petitioner was in possession of the arms. The allegation rightly or wrongly depicts a cognizable offence which is to be investigated and tried as per section 156 Cr.P.C. and provisions of Code, subject to interference by Court. It is not a case where two different F.I.Rs have been instituted against the same person or set of persons. It is a rival version of occurrence based on material unfurling in course of investigation. Moreover, I am informed that charge sheet has also been filed and the case is fixed on point of taking cognizance In aforesaid circumstances, this Court does not find it appropriate to quash the investigation at the threshold, as such this writ application is dismissed. Shashi. (S.P.Singh,J)