IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42388 of 2007 SHATRUGHAN YADAV @ SHATRUGHAN PRASAD YADAV, SON OF LATE MAHABIR YADAV, RESIDENT OF VILLAGE-DHAM SHAINA, P.S.-SOUR BAZAR, DISTRICT- SAHARSA. …..Petitioner. Versus 1. THE STATE OF BIHAR 2. VIJAY KUMAR YADAV, SON OF SRI NAGESHWAR PRASAD YADAV, RESIDENT OF VILLAGE-SAHURIA, P.S.-SOUR BAZAR, DISTRICT-SAHARSA. …..Opposite Parties. For the Petitioner : Mr. Krishna Pd. Singh (Sr. Adv.) For the O.P. No. 2 : Mrs. Meena Singh (Adv.) For the State : Mr. U.S.P. Singh (APP.) ----------- 03/ 07.05.2010 Heard learned Counsel for the petitioner, learned Counsel for the State and learned counsel for the O.P. No. 2. The petitioner has come here for quashing the order dated 12.06.2007 passed by Additional Sessions Judge, Fast Track Court No. II, Saharsa in Criminal Revision No. 428 of 2005 by which he has dismissed the revision petition and affirmed the order dated 19.08.1998 passed by the Chief Judicial Magistrate, Saharsa in G.R. Case No. 565 of 1994 arising out of Saur Bazar P.S. Case No. 87 of 1994 whereby the Chief Judicial Magistrate took cognizance against the petitioner. Submission is that the parties have compromised the case. It has also been submitted that offence under Section 307 of the Indian Penal Code and Section 27 of the 2 Arms Act is not made out against the petitioner and so the court below was incorrect in his approach by which cognizance was taken and the same was affirmed by the revisional court. On the basis of written report by Vijay Kumar Yadav the case under Section 307 and some other Sections of the Indian Penal Code was registered against five named accused persons. After investigation police submitted charge sheet under Sections 341 and 504 of the Indian Penal Code and Section 27 of the Arms Act. This petitioner was not sent up for trial. But after perusal of the materials available on the record the Chief Judicial Magistrate has taken cognizance against the petitioner also because on the record there was statement of the witnesses under Section 164 of the Code of Criminal Procedure. Allegations in the First Information Report was that on 06.05.1994 all the accused persons including the petitioner armed with rifle, gun and pistols came at the place of occurrence and started firing upon the informant. In course of investigation statement of some of the witnesses has been recorded under Section 3 164 of the Code of Criminal Procedure and charge sheet was submitted against four persons namely Maheshwari Yadav, Vinod Yadav, Phuleshwar Yadav and Dileshwar Yadav under Sections 341 and 504 of the Indian Penal Code and Section 27 of the Arms Act. The petitioner was not sent up for trial. The court below has considered paragraph nos. 1, 2 and 8 of the case diary and found the involvement of the petitioner so the cognizance was taken. If upon the receipt of the police report under Section 173 (2) of the Code of Criminal Procedure the Magistrate finds prima facie material then it can differ with the report of the police and the Magistrate is well within jurisdiction to take cognizance. In the police report the Magistrate has found overwhelming evidence connecting the petitioner also in the offence and so it has taken cognizance. The petitioner has challenged the order of the Magistrate and the revisional court has affirmed it. The second revision is barred but this petition has been filed under Section 482 of the Code of Criminal Procedure. A petition by way of second revision is 4 barred under Section 397 of the Code of Criminal Procedure but this petition has been filed to overcome the barred under Section 397 of the Code of Criminal Procedure. It has been submitted that the parties have compromised the case and so the order taking cognizance against the petitioner may be quashed. Offence under Section 307 of the Indian Penal Code is not compoundable. No doubt, the superior court in special circumstances have allowed the parties to compound the offence under Section 307 of the Indian Penal Code but those have been done in special circumstances when the ends of justice was required to be done to that extent. In the present case, it appears that the case is of 1994 and the petitioner has not appeared as yet before the court below. So far as merit is concerned, the Magistrate has rightly differed from the police report and so the order taking cognizance is not bad and there is no need to interfere with the impugned order. Considering the fact that the parties have compromised the case, the petitioner is directed to move before the court below and take plea that the case has 5 been compromised. Accordingly with the aforesaid observation this petition is dismissed. kksinha/ (Shyam Kishore Sharma, J.)