IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.789 of 2007 HARGUN RAI Versus THE STATE OF BIHAR & ORS ----------- 4. 16.9.2008. This revision has been preferred against the order dated 2.4.2007 passed by Ist Additional Sessions Judge, Gopalganj in Cr. Revision No.194 of 2006/2 of 2007 thereby the order dated 16.5.2006 passed by C.J.M., Gopalganj in Gopalpur P.S. Case No.54 of 2005, G.R. No.1955 of 2005 regarding taking cognizance and issuing summons against the opposite party nos.2 and 3 has been set aside. Heard the learned counsel for the parties. It appears from the record that on the basis of fardbeyan lodged by the petitioner Hargun Rai, Gopalpur P.S. Case No.54 of 2005 was registered under sections 307, 448, 504/34 I.P.C. against the opposite party nos.2 and 3. The police after investigation submitted final form. However, the learned C.J.M., after going through the material available in the case diary deferred from the opinion of the police and took - 2 - cognizance against the opposite parties and issued summons against them. The opposite parties being aggrieved from the order of the learned C.J.M. preferred revision before the Sessions Judge, which was ultimately heard by the Ist Additional Sessions Judge, Gopalganj who set aside the order. It appears from the impugned order that the learned Additional Sessions Judge has set aside the order of C.J.M. mainly on the groun that the report submitted by the police under section 173 Cr.P.C. does not contain list of prosecution witness and hence issue of summons against the opposite parties is barred under Sub Section (2) of Section 204 Cr.P.C. It appears that the learned Additional Sessions Judge has not properly appreciated the provision of law. The Sub Section (2) of Section 204 Cr.P.C. is specially meant for complaint cases in which the complainant is required to submit list of witnesses for the purpose of examination of witness. In police case, no separate list of witnesses is required to be filed as name of - 3 - the witnesses along with their statements are invariably available in the case diary on the basis of which the Magistrate takes cognizance and issue process against accused. The observation made by the apex court in a case of Union of India vs. Prakash P. Hinduja and another reported in 2003(6) SCC 195 gives answer to the question raised in the impugned order. In paragraph-14 of the decision, it has been observed as follows : “The Magistrate is no doubt not bound to accept the final report (sometimes called as closer report) submitted by the police and if he feels that the evidence and material collected during investigation justify prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He would be doing so in exercise of powers conferred by Section 190 CrPC. The statutory provisions are, therefore, absolutely clear that the court cannot interfere with the investigation.” - 4 - N.H./ Accordingly, this application is allowed. The impugned order is hereby set aside and the order passed by the C.J.M. is restored. ( Ghanshyam Prasad )