IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11243 of 2007 SHYAM NARAIN YADAV & ORS Versus STATE OF BIHAR & ANR ----------- For the petitioners: Mr. S.B.K.Manglam, Advocate For the State : Mrs. Indu Bala Pandey, APP For Opposite party no.2: Mr. Sanjay Kumar Sinha, Advocate 11 1.12.2009 The instant application is filed against the order dated 13.2.2007 passed by the Judicial Magistrate Ist Class, Madhepura in G.R.No.903 of 2006, arising out of Shankarpur P.S. Case No.33 of 2006 dated 11.10.2006 whereby and whereunder the learned Magistrate took cognizance of offence under sections 302/34 of the Penal Code and section 27 of the Arms Act. It is alleged by the informant that at 6.30 P.M. on 10.10.2006 he had gone for worship in the Goddess Durga Temple, Raibhir along with his father Satya Naryan Yadav (since deceased), uncle Sada Nand Yadav @ Sadhu Yadva and neighbours Naryan Yadav and Jawarhar Yadav and while they were returning from there at 6.45 P.M. , 15-16 persons surrounded his father and put cloths in his neck and took him towards the bamboo orchard in the eastern side through the door of one Pintu Yadav. It is further alleged that he identified 14 persons out of 17-18 persons and the petitioners happen to be some of the accused identified by the informant. The police after investigation found the case true against eight named accused and 3-4 unknown accused persons. After completing the entire investigation the police submitted final form in favour of these petitioners. The petitioners submits that the impugned order taking - 2 - cognizance and summoning the petitioners to face trial under sections 302/34 of the Penal Code and section 27 of the Arms Act is bad in law. He submits that there is contradiction in the statement of the witnesses which fact has not been noticed by the learned Magistrate while taking cognizance. He submits that it would appear from the certified copy of the order that the entire order is in one handwriting whereas the word ‘Sangyan’ which is Hindi version of word ‘cognizance’ is in another handwriting. In support of his contention he relies upon a decision reported in 2003(4) P.L.J.R. 81. He further submits that the order taking cognizance and issuance of summons are two different things and in this respect he also refers to a decision reported in 2006(4) P.L.J.R. SC 309. Learned counsel submits that according to section 190(1)(b) Cr.P.C. the Magistrate while taking cognizance has to take into account the entire material facts appearing in the police report submitted under section 173(2) Cr.P.C. He further submits that not only the informant but some of the witnesses have also supported the prosecution case. In his statement recorded under section 161 Cr.P.C., the informant has not named these petitioners as an accused. At the time of taking cognizance the Magistrate has merely to satisfy himself whether a prima facie case appears against the accused persons for summoning him or not. Further some contradiction in the statement of the witnesses would not weigh at the stage of cognizance. After hearing counsel for the parties, this court finds that the informant not only in the F.I.R. but in his subsequent statement has - 3 - corroborated the prosecution case. Even some of the witnesses have expressed the involvement of the petitioners in this case. It is well settled that if a Magistrate finds that there is a prima facie material against accused persons, he can differ with the conclusion of the police. The aforesaid view expressed in the case of Abhinandan Jha Vs Dinesh Mishra, reported in 1968 SC 117 holds the field. At the stage of taking cognizance and summoning the accused persons to face trial, the Magistrate does not have to weigh the evidence with a view to ascertain whether there is sufficient evidence for conviction of the accused or not. The Magistrate has merely to satisfy himself whether a prima facie case appears against the accused persons for summoning him or not. In this respect one can make a reference to a decision in the case of State of Karnataka vs M.Devendrappa, reported in (2002) 3SCC 89. I find from the impugned order that the Magistrate noticed that final form has been submitted against these petitioners. He further observed that there is sufficient material in the case diary against accused persons to summon them. Thus it cannot be said that the Magistrate did not peruse the materials on record and as the contention of the petitioners to the contrary is to devoid of any merit. On consideration of materials if a Magistrate finds that there is sufficient material to proceed against person or persons who have not been charge sheeted, it can still take cognizance and summons such person to face trial. However, if he finds that there is no sufficient material against the accused, he may let them off. - 4 - KHAN The decision referred to by learned counsel for the petitioners in the case reported in 2003(4) P.L.J.R. 81 would not ipso facto applicable in this case as, in the aforesaid case the learned Judge was considering the circumstances under which the court may exercise power section 319(b) Cr.P.C. This takes us to the last of submissions whether the Magistrate has applied his mind to the facts of the case and whether the word ‘Sangyan’ occurring in the order sheet is in different hand writing. It appears from the order sheet that there is no dispute to the fact that the order has been signed by the learned Magistrate. So far as difference in hand writing in respect of the word ‘Sangyan’, it would be open to the petitioners to ventilate his grievance before the District Judge itself. In backdrop of the aforesaid facts and circumstances, I do not find any merit in this application. It is accordingly dismissed. (S.P.Singh,J)