IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.3356 of 2009 1. YOGINDRA BAITHA, S/O LATE SARYUG BAITHA 2. MAHINDRA BAITHA, S/O LATE TEKWAN BAITHA 3. BIGU BAITHA, S/O LATE GOPI BAITHA 4. RADHA BAITHA, S/O LATE GOPI BAITHA 5. BIRA SAHANI,S/O PUTH SAHANI 6. RAJINDRA BAITHA, S/O LATE SARYUG BAITHA 7. BHIKHARI BAITHA, S/O LATE JHOKHU BAITHA 8. RAM SWARUP SAHANI, S/O LATE LADAI SAHANI 9. GANESH SAHANI, S/O LATE LADAI SAHANI 10. JAGDISH BAITHA, S/O LATE KUJA BAITHA 11. RAMDEO BAITHA, S/O LATE SARYUG BAITHA 12. RAM AYODHYA BAITHA, S/O YOGINDRA BAITHA ALL ARE RESIDENTS OF VILLAGE BHALUAHI, P.S. GHORASAHAN, DISTRICT EAST CHAMPARAN .. PETITIONERS Versus 1. THE STATE OF BIHAR 2. MOST. KUNWARI DEVI, W/O LATE RAMASHISH SINGH, RESIDENT OF VILLAGE BHALUAHI, P.S. KASWA KADAMWA, P.S. GHORASAHAN, DISTRICT EAST CHAMPARAN .. OPPOSITE PARTIES **** /5/ 03.12.2010 Heard the counsel for the parties. 2. This criminal miscellaneous petition is for quashing the order, dated 19.12.2005, passed in Ghorasahan P.S. Case No. 210 of 2005, by which a cognizance has been taken under Sections 341, 323, 448, 504 and 354 of the Indian Penal Code and 3 and 4 of the Witch Craft Act. 3. The prosecution case, as alleged in the fardbeyan, is that twelve accused persons came at the darwaza of the 2 informant, abuses and addressed her as “witch” and when the informant came out to protest then she was abused, assaulted and compelled to administer night soil. 4. The learned counsel for the petitioners submits that a compromise petition has been filed, however, the police filed the final form. The learned Magistrate took cognizance against all the accused persons for offence under Sections 341, 323, 448, 504, 354, 380 and 328/34 of the Indian Penal Code ignoring the submission of the final report by the police which indicated that the first information report is maliciously false. 5. The grievance of the petitioners is that even though the final form was submitted, but, no protest petition filed, the cognizance has been taken without giving any reasons deferring with the police report. It is submitted that a Magistrate take cognizance in a mechanical manner and take cognizance in disregard of police report reliance has been placed upon a decision of the Hon’ble High Court reported in 2007 (2) P.L.J.R., 150 (Hira Lal Gupta Vrs. The State of Bihar) and 2008(1) P.L.J.R., 723 (Vijay Kumar and Anr. Vrs. The State of Bihar & Anr.) where it has been held that cognizance of the offence taken after final report submitted by the investigation officer without giving sufficient reason that 3 the finding of the investigating officer is bad in law. 6. The learned counsel for the opposite party, however, contended that for taking cognizance there is no requirement for giving reasons and has relied upon a decision reported in 1978 (26) B.L.J.R., 810 (Deo Kumar Rai & Ors. Vrs The State of Bihar), A.I.R. 1995 S.C., 785 (State of West Bengal & Anr. Vrs. Mohammed Khaliti) where it has been held that reason is not required in taking cognizance. It has, further, been contended that the learned Magistrate in it’s order has stated that he perused paragraphs 5 and 6 of the case diary. Hence, amount to be a reasoned order and, hence, contended that the order of cognizance is sustainable. 7. However, on the respective submissions of the parties, the question for consideration whether the impugned order is sustainable. 8. However, admitted fact is that the final form has been submitted which mentions that the investigation and supervision it is apparent that the allegation is palpably false. However, the decision relied upon by the learned counsel for the petitioners reported in 2007(2) P.L.J.R., 150 (supra) the police on the fardbeyan lodged the case and the police finding the case to be untrue final form was submitted. However, the 4 learned Magistrate did not accept the final form and took cognizance against the accused persons deferring with the investigation report without there being any protest and in this fact held that rejecting the opinion of the investigation officer in mechanical manner is not permissible and there must be some strong and sufficient ground for Magistrate to defer with the opinion formed by the investigation agency and this view is supported in 2008(1) P.L.J.R., 723 (supra) holding that order taking cognizance is abuse of process of the Court. 9. The learned counsel for the opposite party, however, relied upon the decision reported in 1978 (26) B.L.J.R., 810 (Deo Kumar Rai & Ors. Vrs The State of Bihar) where it has been held that under the facts and circumstance after submitting the final form subsequently the investigation officer submitted the charge sheet and on the basis of said charge sheet submitted by the police, the Magistrate took cognizance and in the decision reported in A.I.R. 1995 S.C., 785 (supra) the cognizance was taken on the submission of the charge sheet. It is over the Magistrate, in such circumstance, to take cognizance and issue the process. The Magistrate can reject the opinion of the investigating officer without making the reasons. However, the order taking 5 cognizance must show that the learned Magistrate passed the order after due application of mind and not to pass the order mechanically. It is true that the Magistrate can take cognizance, deferring with the police report, but, after due application of mind. 10. However, the learned counsel for the opposite party submits that order taking cognizance may not be merely quashed, but, an opportunity may be given by remanding the case to lower Court and the case be remanded to pass the order afresh, hence, having regard to the facts and circumstances and the impugned order is set aside, the case is remanded for fresh consideration in accordance with law and the matter is sent back to the lower Court to pass a fresh order in accordance with law. 10. With these observations and directions, this application is allowed. S.A. ( Gopal Prasad, J.)