IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4330 of 2008 1. NAVIN KUMAR @ NABIN KUMAR, Son of Arjun Prasad 2. Arjun Prasad, Son of Late Bishwanath Prasad Both residents of village Nanaur, P.s. Bind, District Nalanda …………. Petitioners Versus 1. STATE OF BIHAR 2. Dharmendra Prasad, Son of Sri Ramchandra Prasad, R/o villae Nanaur, P.S. Bind, District Nalanda ……. Opp. Parties. ----------- For the petitioners : M/s D.K.Sinha, Sr. Advocate & Prem Chand Yadav, Advcoate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : Mr. Pramod Kumar Sinha No. 1, Advocate O R D E R The two FIR named accused of Asthawan (Bind) P.S. Case No. 164 of 2005 arising out of Complaint Case No. 853 (C) of 2005 have prayed for quashing of the order dated 12.12.2007 passed therein by Sri Manoj Kumar, Judicial Magistrate, 1st Class, Biharsharif , whereby differing with the police report he has taken cognizance for commission of offences under sections 392 and 387/34 IPC. One Dharmendra Prasad, impleaded herein as O.P. No. 2, filed Complaint Case No. 853(C) of 2005 against the two petitioners alleging commission of offences under sections 392 and 387 IPC at their hands in between 11 A.M. and 7.30 P.M. on 10.8.2005. The said complaint on being transmitted to the concerned P.S. under section 156(3) Cr.P.C. the instant Asthawan P.S. case came to be registered. According to the informant he was a teacher in Middle School, Tiuri, and he was living along with 2 his wife and children at Biharsharif whereas his parents were living at the ancestral village and his two brothers were in service at Bangalore. It is alleged that Navin Kumar, petitioner no. 1, went to his parents of the informant and threatened them to part with Rs. one lac as rangdari and in the event of failure to pay they were threatened with dire consequences. It is further alleged that at about 7.30 P.M. on 10.8.2005 while the informant on his motorcycle was enroute to his village to meet his parents and had reached Jakhaur More, petitioner no. 1 signalled him to stop. Petitioner no. 1 at the relevant time was accompanied by petitioner no. 2 and two others and it is alleged that both the petitioners ordered the informant to part with whatever money he had and when the informant refused to comply petitioner no. 1 allegedly took out his pistols and slamming it against the head of the informant and while threatening to kill him took away Rs. 5000/- from his pocket and directed him to pay the reaming Rs. 95,000/- at the earliest and also threatened him and his parents with dire consequences in the event of non payment. Navin also admitted of having threatened his parents earlier in the day. It is stated that in the meantime seeing a motorcycle coming from Jakhaur More side the accused persons fled away. It is said that co-villager Shailendra Kumar was on the motorcycle and had identified the accused in the light of the motorcycle. On reaching home he was informed by his parents of Navin Kumar having threatened them for payment of Rs. one lac. It is also alleged that 3 on the following day he went to the concerned police station to lodge a case but in view of the police dilly dallying with the matter he was compelled to file the complaint. The police after due investigation submitted a final report declaring the petitioners to be innocent but the learned Magistrate ignoring the final report submitted by the Investigating Officer and the notes of the supervising authorities namely the Dy.S.P., Biharsharif and the Superintendent of Police, Nalanda of the case being false and false implication of the petitioners since they were vehemently opposing the illegal activities of the informant being involved in embezzling Government money allotted for construction of the school building differed with the final report and took cognizance. It is further submitted that in course of investigation it became apparent that the entire allegations levelled against the petitioners were false and fabricated. It was also submitted that the higher authorities of the police had recommended action against the informant under sections 182 and 211 IPC but the said recommendations were ignored by the learned Magistrate taking cognizance. I have perused the impugned order taking cognizance and it appears that the learned Magistrate while differing from the police report has placed reliance on paragraphs 2, 5, 7, 8 and 18 of the case diary. Apparently the reliance by the Magistrate on certain paragraphs of the case diary for differing from the police report 4 and taking cognizance involves a looking into facts which have come to light in course of investigation at the earliest stage. However, the court does not appear to have taken into consideration the subsequent developments which cropped up in course of investigation including the supervision notes of the superior authorities. It is true that the court is not required to look into the notes of the supervising authorities but it is definitely required to consider the final report submitted by the Investigating Officer and the reasons therefor. In the impugned order the court has merely referred to certain paragraphs of the case diary without stating what are the materials available in those paragraphs so as to differ from the final report. In the circumstances a reasoned order was required to be given so that the superior court could test the rationality and reasonability of the order The court was also required to take into consideration the finding of the Investigating Officer regarding the embezzlement by the informant of Govt. money and the false implication of the petitioners who were vehemently opposing the illegal activities of the informant. O.P. No. 2 has appeared to contest the application but no show cause or counter affidavit has been filed on his behalf and only oral submissions in support of the impugned order has been advanced which in view of my observation made in foregoing paragraphs cannot be appreciated. In the result the application is allowed and the 5 impugned order is set aside and the matter is remitted back to the court below to pass fresh orders in accordance with law after proper perusal of the case diary and in the light of the observations made above. Patna High Court, Patna. Dated : The 2nd of July, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)