IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2934 of 2006 ABHISHEK KUMAR SHARMA Versus STATE OF BIHAR ----------- For the petitioner : M/S Anil Jayaswal and Anjana Bhagat, Advocates. For the State : Dr.Mayanand Jha, A.P.P. _______ O R D E R This application by the petitioner whose name surfaced in course of the investigation and against whom along with seven others the charge sheet has been submitted in connection with Gaya Civil Lines P.S. Case No.152 of 2005 is for the quashing of that part of the order, so far as he is concerned, dated 17.10.2006, passed therein by the learned Chief Judicial Magistrate, Gaya , whereby cognizance for offences under Sections 395, 412 I.P.C has been taken. The aforesaid case was initially registered under Sections 461, 379 I.P.C. against unknown thieves on the basis of a written report submitted on 7.7.2005 by one Anil Kumar Sharma, the father of the petitioner herein, inter alia alleging that earlier in the night theft had been committed in his shop dealing in watches and mobile phone sets and running in the same and style of “Time House”, located in the ground floor of his house. It is said that at about 2 A.M. he , on hearing loud sounds , woke up from sleep and on coming to the balcony he saw a police jeep standing there and policemen were chasing some persons who were fleeing . It is alleged that on coming 2 down, he found the gate of his shop had been cut open and several mobile phone sets, the full details with identification nos. whereof has been furnished , and watches had been stolen from the show-case and the Godrej almirah . It is said that 14 mobile phone sets, 12 belonging to him and 2 belonging to the customers, the estimated cost whereof was Rs.4.25 lacs and 20-25 thousand rupees kept in the almirah had been taken away. A big cutter, a pair of chappals and a handkerchief were recovered from in front of the shop and were seized. In course of the investigation, as it appears, the police raided the shop and house of one Ram Swarup Prasad and from him materials came to light showing the conspiratorial design and nefarious involvement of the informant in as much as the stolen watches had been sold to Ram Swarup from whom the informant had repurchased those watches. On the basis thereof the informant was added as an accused in the case and arrested. The petitioner was subsequently arrayed as an accused when one of the stolen mobile phone sets was recovered from his possession. In attempting to show the innocence of the petitioner, the learned counsel made reference to certain paragraphs of the case diary with special reference to the statement of some of the witnesses under Section-161 Cr.P.C. . In other words what was sought to be placed by way of submissions before me was in fact his defence which, as per the well established principles cannot be looked into at this stage. Admittedly, a charge sheet showing the petitioner as one of 3 the accused has been submitted. The position on submission of a charge sheet is by now well settled regarding the action to be taken by the Magistrate. It is open to the Magistrate after exercise of judicial discretion to take the view that the facts disclosed in the police report do or do not make out an offence for taking cognizance. If he agrees with the report he has full jurisdiction to take cognizance of the offence under Section 190 (1) (b) Cr.P.C. and if he is of the view that the facts do not make out an offence or that there is no sufficient evidence to justify an accused being put on trial, he will decline to take cognizance. It is worth noticing that the involvement of the petitioner came to light with the recovery of a mobile phone set from his possession, the E.I.I. no. whereof tallied with the E.M.I. no. of one of the mobile phone sets said to have been stolen at the alleged occurrence. I find no apparent illegality in the impugned order dated 17.10. 2005. Accordingly, there being no merit in this application, it is dismissed. ( Abhijit Sinha, J) Patna High Court, Patna Dated : the 20th August,2008 Nawal Kishore Singh/A.F.R.