IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2149 of 2006 LAL MOHAN SINGH, Son of Shiv Narain Singh, resident of Village- Ghuri Amnour, P.S.- Amnour, District- Saran. ------Petitioner. Versus The State of Bihar....................................................Opposite Party. ----------- For the petitioner: M/S. Ashutosh Ranjan Pandey and Ramanuj Tiwary, Advocates. For the State : Mr. Jharkhandi Upadhyaya, A.P.P. ----------- O R D E R The petitioner herein who, though, not named in the F.I.R. of Amnour P.S. Case No. 78 of 1989, but whose name alongwith another cropped-up in course of investigation has filed this application for quashing of the entire proceeding arising out of the said police case including the order dated 19.9.2000/16.3.2002 whereby cognizance has been taken by Sri R. N. Tripathi, J.M. Ist Class, Chapra, under Sections 302 and 201/34 I.P.C. The aforesaid police case was registered against unknown under Sections 302 and 201/34 I.P.C. on the basis of the fardbeyan given by Chowkidar Sikandar Manjhi at around 10 A.M. on 23.5.1989. According to the informant, he heard rumour in the village that someone had killed Mostt. Shanti Devi wife of late Ram Barai Singh and had thrown the dead body in the well whereupon he went to the well in question in the company of Shiv Narayan Mahta and Burdhun Manjhi and the dead body was taken out of the water. He found a rope tied around the neck of the dead body of Shanti Devi. It was apprehended that the dead body was thrown in the well to hide the same. It has been submitted on behalf of the petitioner that he has - 2 - been falsely implicated in this case due to village politics and the name of his agnate Hari Narayan Singh had also been dragged in as the said Hari Narayan Singh had purchased some lands from deceased Shanti Devi. It was also submitted that the name of the petitioner as also Hari Narayan Singh had been dragged in only on the basis of suspicion since earlier a sale deed had been executed in their favour by the deceased Shanti Devi. It was also sought to be submitted that not a single witness in course of investigation had claimed to have seen any of the petitioners near the place of occurrence or even in the company of Shanti Devi. The alternative submission of the learned counsel for the petitioner was that since Shanti Devi was suffering from Cancer which had reached an advanced stage, she had got frustrated with her life and to cover the cost of the expenses for her treatment she had sold 0.43 Dhoors of land in favour of one Keshar Devi wife of the petitioner on 17.5.1985 for some four years back, and as such, there was no occasion for the petitioner to have murdered the deceased. It was also submitted that on 26.12.1987 i.e., some two years back Uttar Sah and Rupan Singh had purchased lands from deceased Shanti Devi. According to the learned counsel, the post mortem report did not reveal the cause of death and no external injuries were found on her body. The further grievance of the petitioner is that once the police after due investigation had submitted final form on 10.3.1991 and the learned Chief Judicial Magistrate had accepted the same by his order dated 24.9.1991, the investigation was reopened on the directions of - 3 - the D.I.G. who directed the Superintendent of Police to take action against the petitioner and accordingly, order followed to the Investigating Officer to reinvestigate the case and without following any further enquiry, the Investigating Officer submitted a charge sheet on 8.12.1995 on the basis of the same materials upon which the police had submitted the final form earlier and the learned Judicial Magistrate duly took cognizance remiss of the fact that no further investigation had been made and now a charge sheet was being submitted based on the same materials whereupon the earlier final form had been submitted. According to the learned counsel, accepting the final form amounted to discharge and acquittal of the accused and thereafter to take cognizance of the offence on a fresh charge sheet based on the same set of materials was an apparent abuse of the process of the court and in violation of the provision of Section 300 Cr. P. C. Sub section (8) of section 173 Cr. P. C. has made it possible for the police to send in a further report. Gainful reference in this connection may be made to the decision of State Vs. Aruna reported in (1995) 1 S.C.C.1 and the State of Bihar Vs. J.A.C. Saldanna (A.I.R.1980 S.C.326). In the earlier case after a final form had been submitted by the police stating that the complaint sent by the Magistrate under Section 156(3) Cr. P. C. was false and the Magistrate accepted the same. It so happened that the Superintendent of Police independently ordered further investigation and this time the police filed a charge sheet and the Magistrate took cognizance thereupon. The Apex Court observed that this was visualized under sub section - 4 - (8) of section 173 Cr. P. C. and it could not be said that the Magistrate has no jurisdiction to take cognizance. There is another aspect of the matter. Admittedly, there are two types of reports submitted by the police under Section 173(2) Cr. P. C. namely, a final form and a charge sheet and both were submitted at two different points of time in respect of the same occurrence on the basis of investigation. It is well settled that at the time of taking cognizance, the Magistrate is not required to meticulously judge the materials which had come on record and if he is of the opinion that the materials make out a prima facie case to proceed against the accused therefor he will take cognizance which the learned Magistrate has done in the instant case. Whether an offence is made out or not against the petitioner as a matter which can only be decided at the stage of framing of charges or at a full dressed trial. Even the issue of two different kinds of report at two different points of time is the subject matter of the trial and it would have to be decided therein. For the reasons stated in the foregoing paragraphs, I find no apparent reason to interfere with the impugned order. There being no merit in the application, the same is dismissed. (Abhijit Sinha,J) Patna High Court, Patna Dated: the 21st July,2009. U.K./A.F.R.