CRIMINAL MISCELLANEOUS No.415 OF 2001 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- MANAN SAH (MADAN SAH) SON OF LATE SUKHA LAL SAH, RESIDENT OF VILLAGE AMARPUR, P.S. DAROULI, DISTRICT SIWAN, AT PRESENT HOUSE LNO. T.I 12 KOSHI COLONY, BHIMNAGAR, P.S. BIRPUR, DISTRICT SUPOUL. ... ... PETITIONER. Versus THE STATE OF BIHAR ... OPPOSITE PARTY. ---- For the Petitioner : Mr. Saurabh Kumar, Adv. For the State : Mr. Surendra Prasad Singh, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner has approached this Court, while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 4.12.1999 passed by Shri A.K. Singh, Judicial Magistrate, Ist Class, Birpur in Birpur P.S. Case No.135 of 1997, G.R. No.571 of 1997. By the said order, the learned Magistrate, while differing with the police report, had taken cognizance of offence under Sections 498A and 304B of the Indian Penal Code and directed for summoning the petitioner. 2. Short fact of the case is that on self statement of one Sri Sheo Prasad, Sub 2 Inspector of Police, an F.I.R. vide Birpur P.S. Case No.135 of 1997 was registered on an allegation of commission of offences under Sections 498A and 304B of I.P.C. against three named accused persons including the petitioner. In the F.I.R., husband and mother-in-law along with this petitioner were made accused. After conducting enquiry, first charge sheet was submitted against only husband and mother-in-law i.e. Dilip Kumar Gupta and Parwati Devi respectively. So far as investigation in respect of petitioner is concerned, same was kept pending. In the case, after conducting further investigation, police submitted supplementary report exonerating this petitioner from the charges. After submission of the final report, the learned Judicial Magistrate, Birpur, differing with the recommendation of the police i.e. police report, has taken cognizance of offences as mentioned above and directed for summoning the petitioner. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 13.11.2001, while adjourning the case, this 3 Court directed that till the next date of hearing, further proceeding in G.R. Case No.571 of 1997 pending in the court of Sri A.K. Singh, Judicial Magistrate, Ist Class, Birpur, shall remain stayed and finally, the case was admitted on 23.4.2002 and while admitting, it was directed that during the pendency of the application, further proceeding in Birpur P.S. Case No.135 of 1997 (G.R. No.571 of 1997) pending in the court of Sri A.K. Singh, Judicial Magistrate, Ist Class, Birpur, shall remain stayed and order of stay is still contining. 4. Learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance, has firstly argued that the order of cognizance is liable to be set aside on the ground that the learned Magistrate, while differing with the police report, has not assigned any reason. It was submitted that it is true that at the time of taking cognizance, there is no requirement to assign a reason, but in case of differing with the police report, it is duty on the part of the concerned Magistrate to assign some reason at least. It was further 4 submitted that in the present case, after investigation, charge sheet was submitted only against two accused persons and this petitioner was not forwarded by the police. Charge sheet was also submitted against wife of the petitioner and his son. Thereafter, the case of two accused persons was committed to the court of Sessions and finally, they were put on trial and acquitted. Learned counsel for the petitioner, while referring to Annexure-1 to the petition i.e. judgment of acquittal dated 4th August, 2000, submits that even before order of cognizance against the petitioner, earlier two accused persons were put on trial in the year 1986 itself. During the said trial, both the accused persons were not found guilty and they were acquitted and discharged. It was further submitted that since the accused persons, in respect of whom first charge sheet was submitted, have already been exonerated by the court of Sessions, no purpose would be served by asking the petitioner to participate in the case after lapse of several years. It was submitted that though final form was submitted exonerating the 5 petitioner in the month of December,1999, the learned Magistrate, differing with the police report, had taken cognizance of the offence even against the petitioner. The said order was challenged by the petitioner and this Court stayed the proceeding before the court below and stay continued till date. It was further submitted that though there were no material available in the case diary, the learned Magistrate, in a mechanical manner, has passed the order of cognizance. On aforesaid grounds, it has been prayed to quash the order of cognizance as well as entire proceeding so far as petitioner is concerned. 5. Shri Surendra Prasad Singh, learned Additional Public Prosecutor, appearing on behalf of the State, has opposed the prayer of the petitioner. However, he is not in a position to dispute that at the time of differing with the police report, the learned Magistrate was required to assign some reason. 6. Besides hearing learned counsel for the parties, I have also perused the impugned order as well as Annexure-1 to the 6 petition i.e. judgment of acquittal passed in respect of other two accused persons, who were earlier charge sheeted in the case. 7. The impugned order shows that the learned Magistrate accepted that police had not sent up the petitioner for trial and it was concluded that the petitioner was not present at the place of occurrence on the date of occurrence. The learned Magistrate has simply passed the order of cognizance. He has not bothered to assign even succinct reason for differing with the police report i.e. final form. The court is of the view that of course, at the time of taking cognizance, in acceptance with the police report, there is not requirement for assigning reason, but in the event of differing with the police report, it is necessary on the part of concerned court to assign some reason. Perusal of the impugned order makes it clear that the learned Magistrate had assigned no reason and on this ground alone, this Court is persuaded to quash the order of cognizance. Besides the ground of assigning no reason, the court is further satisfied that on the basis of 7 materials available on record no purpose would be served by directing the petitioner to participate in the proceeding before the court below. 8. Accordingly, the order of cognizance dated 4.12.1999 passed by Shri A.K. Singh, Judicial Magistrate, Ist Class, Birpur is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 4.8.2010 N.A.F.R./N.H.