IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.41520 of 2008 Arun Kumar Singh, son of Shri Vyash Singh, village Belsara, PS Deo, District Aurangabad – Petitioner. Vs. 1) The State of Bihar, 2) Shri Pashupati Prasad, son of Late Ram Prasad, village Dumri Belwa, PS Madanpur, District Aurangabad, presently working as Lecturer, Political Science Department, Jawahar Lal Nehru College, Dehri on Sone, PS Dehri On Sone, Dist. Rohtas. 3) Shri Lalan Prasad Singh, son of Late Ram Deo Singh, village Belsara, PS Deo, District Aurangabad – Opp. Parties. 2 6.7.2011 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. This application has been filed against the order, dated 16.7.2008 passed by the Additional Sessions Judge, FTC IV, Aurangabad in Cr. Revision No. 52/2002 / 46/2007 by which he has set aside the order of cognizance, dated 6.3.2003 passed by the Chief Judicial Magistrate, Aurangabad. The prosecution case is that the opposite parties in this case have assumed the post of Incharge Principal and Secretary of Maha Rana Pratap College. It is alleged that they are spending the money of the college in illegal manner and for this purpose are fabricating and forging documents. It is said that the college has received donations from different people which has been mis-utilised by the aforesaid accused persons. It is submitted that even the Magadh University in 1993 itself has asked the petitioner to explain how the funds are being utilized by the self appointed Secretary and the President of the college. Apparently the result is not known. In any event these aspects can best be considered by the University. The complaint case was sent for instituting an First 2 Information Report under section 156(3) of the Cr. P. C. Final form was submitted and the court of the Chief Judicial Magistrate has taken cognizance in this case. While taking cognizance the Magistrate has said that it appears from the report submitted by the auditors of the Magadh University that details with regard to receipt of donation has not been given by the accused persons. It has been observed that the I.O. has not taken up investigation with regard to this aspect of the matter and has submitted a final form without considering the relevant materials. On the basis of the aforesaid facts the Chief Judicial Magistrate differed with the final form and took cognizance. This order was challenged by the petitioner by filing the revision application. The court has considered the case of the petitioner as well as the opposite parties and the law in question and has come to the conclusion that the court cannot travel beyond the case diary for the purpose of taking cognizance. It is not in doubt that the Chief Judicial Magistrate can differ from the opinion of the I.O. and can take cognizance, in the matter, provided there is evidence to support the contention that the accused persons are in some way involved with the occurrence. What the court cannot do, has been time and again explained by the Supreme court and this court, which is that the court cannot take into account the materials which are not part of the case diary. The Chief Judicial Magistrate, therefore, could not have gone on the presumption that since no enquiry was made with respect to the allegedly collected amount by donation, the petitioner is guilty of the offences alleged. The Magistrate has not bothered to enquire, and perhaps, could not have enquired into the fact whether there was a 3 corpus built up in the college as a result of donations. In fact, it is mere allegation. This case appears to have been filed to dislodge or challenge the position held by the Secretary and the President of the college. These matters should be raised before the appropriate forum i.e. the Magadh University. The discussions aforesaid leads this court to conclude that in fact the order of the Additional District Judge, FTC IV, Aurangabad warrants no interference. This application is dismissed. haque ( Sheema Ali Khan, J.)