IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43163 of 2007 SHIV SHANKAR PRASAD CHOUDHARY, S/o Shiv Narain Pd. Choudhary, R/o Pansai, P.S. Asarganj, District – Munger ….. Petitioner Versus 1. THE STATE OF BIHAR 2. Purnand Choudhary, S/o Late Ugra Mohan Choudhary, 3. Chetnand Choudhary, S/o Late Suresh Choudhary, 4. Raushan Choudhary, 5. Poshan Choudhary, both sons of Omprakash Chy 6. Rajan Choudhary 7. Vaajan Choudhary, both sons of Purnanand Chy 8. Kunj Bihari Choudhary, S/o Chakardhar Chy 9. Chakardhar Choudhary, S/o Adhiklal Choudhary 10. Prahlad choudhary, S/o Gangadhar Choudhary 11. Om Prakash Choudhary, S/o Late Ugramohan Choudhary, all residents of village Pansai, P.S. Asarganj, District Munger ….. Opp. Parties. For the petitioner : M/s Ramakant Sharma, Senior Advocate Lakshmikant Sharma, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P For O.P. No. 2 to 11 : Mr. Sanjeev Ranjan, Advocate ------ O R D E R The informant of Asrganj P.S. Case No. 62 of 2006 has prayed for the quashing of the order dated 17.4.2007 passed therein by learned Chief Judicial Magistrate, Munger, whereby while taking cognizance under sections 147, 148, 341, 323 and 149 I.P.C. against all the 10 F.I.R. named accused ( O.P. Nos. 2 to 11 herein) has refused to take cognizance under section 307 I.P.C. notwithstanding the injuries being on vital parts of the body of the injured persons . It appears that the informant petitioner submitted a written report before the Officer – in – Charge, Asargaj P.S. on 3.11.2006 alleging therein inter alia that on 1.11.2006 Raushan Choudhary the son of the accused Om Prakash Choudhary assaulted his son and as - 2 - the petitioner had gone to Patna High Court wherefrom he returned back in the night of 2.11.2006 and learnt about the said occurrence and accordingly on 3.11.2006 he along with Prahalad Choudhary and others at around 7 A.M. went to the house of co-villager Dashrath Choudhary and as he was talking to him accused Om Prakash Choudhary and Purnanand Choudhary assaulted him with fist and slaps and the Chetnanand Choudhary and inmates of the house were assaulted by remaining accused with rods and danda. Purnanand Choudhary and Om Prakash Choudhary are also alleged to have assaulted the informant on head with intention to kill him as a result whereof he sustained bleeding injuries. It is alleged that on hearing his hulla his wife , daughter and son came to his rescue but they too were assaulted by the accused persons with danda causing injury to them. It is also alleged that accused Prahalad assaulted his son with fist and slaps. The occurrence is said to have been witnessed by several co-villagers and passersby. It is alleged that since the accused persons are anti-social elements the villagers are not in a position to support the allegations against them. The further case of the petitioner is that the accused persons also surrounded his house with muscleman but he managed to escape and had arrived at the police station to lodge the case. It is submitted on behalf of the petitioner that being aggrieved by the perfunctory nature of the investigation he filed a protest petition on 27.11.2006 categorically stating therein that he had sustained injury on vital parts of the body and notwithstanding the - 3 - same the police in collusion with the accused persons was adamant not to submit a chargesheet under section 307 I.P.C. The petitioner also sought to bring to the notice of the Court the perfunctory nature of investigation by submitting that although he had produced the T-shirt he was wearing at the relevant time which was fully covered with blood stains but the police did not take the same into consideration with a view to demolish the case of the prosecution. It was further sought to be submitted that the injury sustained by the petitioner were over the parietal region and frontal region of the scull and the nature and manner of assault clearly makes out a case of intention to kill the petitioner and his entire family including his children. The grievance of the petitioner is that the learned Chief Judicial Magistrate failed to appreciate the injuries on the vital parts and erred in not taking cognizance under section 307 I.P.C. and that too when the petitioner happened to be a lawyer by profession. Section 190 Cr.P.C. encompasses the various ways in which a Magistrate can take cognizance of an offence which are three in number namely (a) upon a complaint (b) upon a police report and (c) upon other information or Magistrates’ own knowledge. The expression “taking of cognizance” has not been defined but does involve any formal action or action of any kind which occurs when a Magistrate applies his mind to the suspected commission of an offence for initiating judicial proceeding or taking steps to see whether there is any basis for initiating judicial - 4 - proceedings. As observed in the case of H.N. Rishbud Vs. State of Delhi (AIR 1955 SC 196)” A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in section 190 Cr.P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 Cr.P.C. is one out of a group of sections under the heading “Conditions requisite for initiation of proceedings”. The language of this section is in marked contrast with that of the other sections of the group under the same heading.” It further held that clauses (a), (b) and (c) of section 190(1) are conditions requisite for taking of cognizance and, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nulitty. Such an invalid report may still fall under any of the clauses of section 190(1) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. There is another aspect of the matter. For taking cognizance only prima facie case has to be established. Meticulous examination of probabilities and improbabilities is not required. Where Magistrate had not taken cognizance as no prima facie case , according to him was made out, then High Court has no jurisdiction to reverse the order. There is yet another aspect of the matter. Admittedly a - 5 - protest petition had been filed by the petitioner - informant. However, the same could be proceeded with only if a final form had been submitted by the police against the accused after due investigation and after the learned Magistrate had accepted the same. But where the Magistrate had taken cognizance on the charge sheet submitted by the police there was no occasion for the Magistrate to have entertained the protest petition. It was also not open for the Magistrate to have acted on his own on the basis of the protest petition filed by the petitioner – informant. In the aforesaid circumstances, I find no merit in this application which is dismissed. However, it is made clear that if in course of the trial materials come on record to indicate that an offence under section 307 I.P.C. had also been committed, it shall be open to the learned Magistrate to act in accordance with law and commit the case to the Court of Sessions. Patna High Court, Patna. Dated : The 30th of January, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)