IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9752 of 2007 RAM BABU MAHTO Versus STATE OF BIHAR & ANR ----------- 12 22.4.2010 The petitioner prays for quashing the order dated 19.1.2006 passed by the Chief Judicial Magistrate, Sitamarhi in connection with Bathanaha P.S. Case No.7 of 2005, whereby the learned Magistrate took cognizance of the offence against the petitioner and other six accused persons against whom investigation is going on, though charge sheet was submitted against one of the accused persons. The petitioner submits that if investigation is still continuing against some of the accused persons, the Magistrate has no jurisdiction to take cognizance against them. The Magistrate can take cognizance against them only, if final report under section 173 Cr.P.C. is so submitted one way or the other. It would appear from the order dated 19.1.2006 taking cognizance that police submitted charge sheet against one Jahid Fakir @ Md. Jahid @ Jahid, while keeping the investigation against rest of the accused persons pending. The learned Magistrate on perusal of the police report found that there was sufficient materials for taking cognizance against the petitioner and other named accused persons against whom investigation is pending. In support of his contention, he relied upon a Division Bench decision in the case of Prem Kant Roy @ Prem Kumar Roy & Ors Vs State of Bihar, reported in 2000(3) P.L.J.R. 152. In this case the court was considering the issue whether the court has power to stop or to issue direction in the manner in which the investigation is to - 2 - be carried out. The Division Bench of this court observed that the police has statutory power to investigate a case and its right is unfettered unless acts are improper and illegal. The judgment referred to by learned counsel for the petitioner would not be applicable to the facts of the case. The submission of the petitioner that no cognizance can be taken against an accused against whom investigation is pending, though final report may have been submitted in respect of some of the accused under section 173(2) is misconceived and fit to be rejected. Once a partial charge sheet or police report is submitted under section 173(2) of Cr.P.C., the Magistrate is not denuded of his power to take cognizance against other accused persons if there is sufficient materials for proceeding even if investigation is kept pending. In a police case, the Magistrate cannot take cognizance so long as there is no police report in terms of section 190(b) Cr.P.C. Section 190(b) mandates that in a police case, a court even take cognizance upon a police report of such facts as contained in section 173(2) Cr.P.C. Once such report is submitted there is no embargo on power of court to take cognizance even against accused against whom investigation is kept pending if there are sufficient materials to proceed. This court in the case of Tarkeshwar Singh Vs State of Bihar & anr, reported in 2009(2) P.L.J.R.898 relying upon a decision of the Hon’ble Apex Court in the case of State of Maharashtra vs. Sharad Vinayak Dongre & Ors, reported in A.I.R. 1995 SC 231 held that there is no bar to the Magistrate in taking cognizance against the - 3 - KHAN accused persons against whom investigation is pending if charge sheet has been submitted against some of the accused. For the reasons stated above, I do not find any merit in this application. It is accordingly dismissed. (S.P.Singh,J)