IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45935 of 2006 1. PRAMOD RAI, S/o Jainarayan Rai 2. Kaushal Rai, S/o late Jainandan Rai 3. Shyam Kishore Rai, @ Saheb Rai, S/o Brijnandan Rai Versus 1. The STATE OF BIHAR 2. Lallan Sharma, Officer Inc., Belsand P.S. ---------- For the Petitioner : Mr. S.N. Yadav. Mr. Saroj Kumar. For the State : Mr. M.N. Jha. For the O.P. no.2 : Mr. Rajesh Kumar. --------- 9/ 24.03.2009 Heard learned counsel for the petitioners and learned counsels for the Opposite parties. In brief, Md. Sahid Ansari and Md. Sakik Husain were arrested. On search, arms and ammunitions recovered from their possession and explosion of bomb was also there on their behalf. Charge-sheet has been submitted against these two accused persons. Investigation was kept pending against these petitioners. Arrested persons were interrogated. They disclosed petitioners’ name as they were called by these petitioners for their assistance in course of election of Mukhiya. After submission of charge-sheet, the case was taken up by the learned Magistrate, who took cognizance against the arrested two accused persons along with these petitioners. Basing the decision of the Apex Court reported in 1995 (1) S.C.C. page 42, the learned counsel appearing for the petitioners submits that no cognizance can be taken against whom investigation was pending and no charge-sheet at all was submitted. To differentiate the opinion of the Hon’ble Supreme Court in the above cited decision on the point that the charge-sheet was submitted. Even 2 then further investigation was requested against charge-sheeted accused and that was allowed. The Apex Court was of the opinion that no cognizance could be taken. Here in the present case, submission is based on unreported decision. Learned A.P.P. and counsel for the informant are also there to oppose the view expressed by the learned counsel for the petitioners and according to them, the Court has power to form a different opinion than the Police Official. I also agree with this point only, but the case in hand is quite different against these petitioners. No opinion had appeared which could only be after submission of the charge-sheet. So, there was no question of deviation. Neither that tallies with the decision of the Hon’ble Supreme Court expressed in 1995(1) S.C.C. page 42. Final form after the cognizance is submitted finding no case against these petitioners. That can be taken, if Court finds material in original case diary and supplementary case diary, but that Court is to form a fresh opinion after considering all the materials, Charge-sheet and final form. But, in any case, cognizance before charge-sheet/final report is illegal. Accordingly, the application is disposed of with observation to the Court below to consider the aspect of taking cognizance afresh in view of the decision as above. shail (Mandhata Singh, J.)