IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34744 of 2010 AMRESH CHAUBEY & ANR Versus STATE OF BIHAR & ANR ----------- 2. 2.11.2010 After having heard Shri Kamal Nayan Chaubey, learned Senior counsel for the petitioners and Shri Jharkhandi Upadhyay, learned A.P.P. for the State, the Court could not appreciate the order passed by the Chief Judicial Magistrate, Rohtas at Sasaram on 17.4.2010 by which he took cognizance of the offences under Sections 302,201, 120B/34 of the Penal Code against accused Jwala Pandey while directing to create separate record in respect of accused Amresh Chaubey alias Billu Chaubey, Fulendra Chaubey, Sri Ram Pandey and Karna Kumari against whom the police had reported keeping the investigation pending. The Officer could have reminded himself of the observation of the Supreme Court in a number of decisions that it is not only the duty of the Magistrate to find out as to what offence or offences are made out but he has also a duty to find out as to who the real offenders were who had committed those offences. This duty is cast upon the Magistrate when he is called upon to take cognizance of an offence. Section 190(b) of the Cr. P.C. empowers a Magistrate to take cognizance of an offence on a police report of the facts constituting the offence. It had been regularly pointed out that as soon as the police sends up any of the accused out of many, as in Chutiya Police Station Case No. 2 16 of 2009 ( G.R. No. 2676 of 2007), it is the duty of the Magistrate to peruse the whole of the police record and to take decisions on three things-(i) whether he should accept the final form in its entirety and act accordingly, and (ii) whether he should differ with the opinion expressed by the Investigating Officer and take his own decision differing from the opinion of the police Officer. If the Magistrate is to differ with the opinion of the Investigating Officer, in that case he is either to pass an order on the same pointing out as to what offences were made out against whom or he may also order that the case was not made out against any of the persons because no offence was made out. The third option was that even if he was accepting the final report, he may form an opinion that the case required further to be investigated into on certain aspects of it and, accordingly, he could issue a direction to the Investigating Officer to investigate those aspects of the case. In all these events the Magistrate is required to apply his judicial mind and the primary need of applying his mind is always to find out whether any offence is constituted on facts of the case. Finding some offence being made out he is further to find out as to who the real offenders were. Even in the case in which investigation had been kept pending against certain accused the hands of the Magistrate are never fettered from perusing the police report which was forwarded to him with the report submitted to him after completing the part investigation in respect of some 3 accused persons and then to find out as to whether the materials could be sufficient for summoning those accused also against whom investigation had been kept pending. This could very well be found out by the decision of the Supreme Court reported in A.I.R. 1995 S.C 231 State of Maharashtra Vs. Sarad chandra Vinayak Dongre and a few recent decisions of this Court also. I direct the Chief Judicial Magistrate, Rohtas at Sasaram to peruse the police report in its entirety to scan the materials available in the case diary and if he finds that the materials were sufficient even to summon other accused persons against whom the investigation was kept pending, he should not hesitate in summoning them also. The petition is allowed to the above extent by remitting the matter to the Chief Judicial Magistrate, Raohtas at Sasaram for passing a fresh order of cognizance and summoning as per law indicated above. The Chief Judicial Magistrate must pass the order within a month from the date of receiving a copy of this order by him. Office shall transmit the copy of the present order as fast as it could. Kanth ( Dharnidhar Jha, J.)