IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11103 of 2007 1. SEEMA DEVI , W/o Ashok Kumar 2. Manoj Jha, S/o Bal Krishan Jha 3. Satish Kunwar @ Satish Kumar , S/o Shivji Kunwar, All residents of village Bangaon Gote, P.s. Bajpatti, District Sitamarhi …… Petitioners Versus 1. STATE OF BIHAR 2. Pravin Kumar Singh, S/o Laxman Singh, R/o village Bangaon Gote, P.S. Bajpatti, District Sitamarhi ….. Opp. Parties ----------- For the petitioner : Mr. Ashok Kumar Jha, Advocate For the State : Mr. Jharkhandi Upadhaya , A.P.P. For O.P. No. 2 : Bijay Bhushan Prasad, Advocate O R D E R Three of the sixteen F.I.R. named accused of Bajpatti P.S. Case No. 58 of 2006, G.R. No. 406 of 2006 have filed this application for quashing of order dated 13.12.2006 passed therein by the learned Sub Divisional Judicial Magistrate, Pupri at Sitamarhi, whereby he has taken cognizance against all the accused persons named in the F.I.R. including these petitioners against whom investigation is still pending whereas charge sheet has been submitted against the remaining others. The aforesaid case was registered under section 307 I.P.C. and other allied sections of the Penal Code and section 27 of Arms Act to which Section 302 I.P.C. was added by order dated 5.8.2006, on the basis of a written report submitted by one Pravin Kumar Singh, impleaded herein as O.P. No. 2 at 9.45 P.M. on - 2 - 4.8.2006 inter alia alleging that earlier that night at about 9 P.M. all the sixteen F.I.R. named accused including the petitioners along with 5- 7 unknown others variously armed with deadly weapons came to the darwaza of the informant and began to abuse him saying that now the Rathod community people have mustered so much courage so as to oppose on equal terms the Kuar community people of the village. It is alleged that soon thereafter the Block Pramukh, Seema Devi, ordered to kill the Rathour community people by firing whereupon Sudhir Kuar opened fire with his whereupon causing bleeding fire arm injury of Jitendra Singh who fell down and Pramod Kumar opened fired with his countrymade gun causing fire arm injury to Dharmendra Kumar Singh and accused Raj Kuar also fired at Arvind @ Munna Singh causing him injury. It is also alleged that Manoj Jha fired at the informant as a result of which he sustained partial injury and accused Vijay Singh assaulted Madhav Singh by means of butt portion of his riffle. It is said that having committed overt acts for about ten minutes the accused persons left and while departing they resorted to firing and also gave out that their purpose had been served. It is alleged that the occurrence took place in accordance with the plans hatched earlier at the instance of the Block Pramukh. The motive behind the occurrence is said to be the fact that the accused Sudhir Kuar and Seema Devi had threatened the mother of the informant not to contest the election of 2006 for the post of Panchayat Samiti Member which had not - 3 - been obeyed by the mother and even her family members had opposed Seema Devi at the election of Block Pramukh and it was as a result of this enmity that the occurrence had taken place. It has been submitted on behalf of the petitioners that they are innocent, had committed no offence and had been falsely implicated due to ulterior motive as petitioner no. 1 Seema Devi had contested the last election of Pramukh and the informant being opposing candidate had lost. It is also submitted that it would be apparent from the F.I.R. that the petitioner no. 1 was only the ordergiver at whose instance the other accused persons resorted to overt acts and petitioner no. 2 is alleged to have fired at the informant whereas petitioner no. 3 was a mere member of the mob with no specific overt act attributed to him and that it was one Sudhir Kuar whose gunfire had resulted in the subsequent death of Jitendra Kumar Singh. It has further been submitted that on supervision by Dy.S.P. and Superintendent of Police it came to light that there was no involvement of the petitioners herein as they were not present in the village and the real assailant was one Anand Singh who had fired upon the deceased and that the said Anand Singh had not been made an accused in this case since he happens to be a member of the informant party. It was also submitted that in course of the investigation none of the witnesses had supported the prosecution case in respect of these three petitioners. Finally it was submitted that since the investigation had been kept pending against these three petitioners - 4 - the Magistrate had no power or jurisdiction to take cognizance against these persons also. It appears from the records that sufficient materials have come against the petitioners in course of the investigation and the plea of the petitioners that they were not present at the time of the occurrence happens to be their defence which cannot be looked into at this stage in a proceeding under section 482 Cr.P.C. So far as the taking of cognizance against these petitioners against whom the investigation had been kept pending is concerned the matter is no more res integra in view of the categorical decision of the Apex Court in the case of Minu Kumari Vs. State of Bihar reported in (2006) 4 SCC 359 and several other judgments of the Apex Court pronounced prior thereto. In Raghubans Dubey Vs. The State of Bihar (AIR 1967 SC 1167) the Apex Court upholding the view of this Court in Raghubans Dubey Vs. The State of Bihar (AIR 1964 Pat 487) in categorical terms observed :- “In our opinion once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.” It would thus follow that once a Court of competent - 5 - jurisdiction takes cognizance of the offence, it is his duty to summon any one who, on adequate materials appears to it to be prima facie guilty of the said offence. This view appears to have been reiterated expressly in Hareram Satpathy Vs. Tikaram Agrawal (AIR 1978 SC 1568) and Joginder Singh Vs. State of Punjab (AIR 1979 SC 339). What calls for pointed attention is that although Raghubans Dubey’s case (supra) arose under the Old Code but the situation remains identical under the New Code and the same view has been taken in Hareram Satapathy’s case (supra) wherein Raghubans Dubey’s case (supra) was sealed with approval and affirmance under the New Code and was later reiterated in Joginder Singh’s case (supra). Now reverting back to Minu Kumari’s case (supra) the Hon’ble Judges took into consideration the case of India Carat (P) Ltd. V. State of Karnataka reported in (1989) 2 SCC 132 and held as follows: “ The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his - 6 - powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1) (a) though it is open to him to act under Section 200 or Section 202 also.” The question which next falls for consideration is when can the Court be said to have taken cognizance? It is now settled law that the Court takes cognizance of the offence and not the offender. As soon as the Magistrate applies his judicial mind to the offence stated in the complaint petition police report etc. cognizance is said to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence. Whether the Magistrate has taken cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer depends upon further actions taken in pursuance thereto and the attending circumstances of the particular case including the mode in which the case is sought to be dealt with or the nature of the action taken by the Magistrate. In the instant case the learned Magistrate appears to have taken cognizance against persons against whom investigation was kept pending. This he could not have done since the investigation was kept pending and the charge sheet had been submitted only against the remaining others. In a situation where the police had sent a report that there is no case made out for sending up an accused for trial the Magistrate has no express or - 7 - implied power to call upon the police to submit a charge sheet. As held in Abhinandan Jha Vs. Dinesh Mishra (AIR 1968 SC 117) the functions of the Magistrate and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c). Cr.P.C. To my mind section 319 Cr.P.C. applies to a situation where the trial has already commenced and even a person discharged can be summoned if evidence regarding his complicity in the crime crops up but the same would not apply in cases where the trial has not begun and the learned Magistrate while taking cognizance can also take cognizance as against those who have not been sent up. Section 190 (1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case if he thinks fit in - 8 - exercise of his power under section 190(1)(b) and direct the issue of process to the accused. In view of the analytical discussion made above the taking of cognizance against the three petitioners against whom the investigation has been kept pending appears to be an abuse of the process of the Court and cannot be sustained in law. Accordingly, the impugned order in respect of the petitioners herein is set aside and the application is allowed. Patna High Court, Patna. Dated : The 24th of October, 2008 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)