IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.770 of 2009 Ramdeo Yadav son of Parsadi Yadav, resident of village Babhnauli, P. S. Nardiganj, District- Nawadah. …. Petitioner. 1. The State of Bihar 2. Azad Yadav son of Ravran Yadav, resident of village Babhnauli, P. S. Nardiganj, District- Nawadah. … Opp. Parties. -------- For the petitioner :Mr. Durgesh Nandan, Adv. For the State : Mrs. Indu Bala Pandey, APP. --------- PRESENT Hon’ble Mr. Justice Amaresh Kumar Lal O R D E R ( 11.08.2011) -------- Amaresh Kumar Lal, J. The informant-petitioner has preferred this revision application against the order dated 26th June 2008 passed by the learned Chief Judicial Magistrate, Nawada by which the cognizance has been taken in Nardiganj P. S. Case No. 28 of 2007 for offence punishable under Section 302 I.P. C. and 27 of the Arms Act against an accused Bhushan Chauhan and no cognizance has been taken against co-accused Azad Yadav. 2. According to the informant- petitioner, he gave his fard beyan to the office-in-charge, Nardiganj Police Station on 13.5.2007 at 8.15 P. M. alleging that on the 2 same day at 7.15 a.m. while he was ploughing his field, cattle graziers raised alarm that Kailu Yadav was shot by the accused- Bhushan Chauhan. Thereafter, the informant went to the place of occurrence and saw that his brother, Kailu Yadav was lying dead and blood was oozing from his person. Son of the informant, Bali Yadav and his nephew Pandit Jee and several persons told the informant that Bhushan Chauhan shot the deceased dead. The reason for the occurrence is the contract of constructing road. Bhushan Chauhan had taken soil from the wheat field of the informant for which on 12.5.2007 Kailu Yadav had altercation with Bhushan Yadav, who had threatened him to kill. 3. The contention of learned counsel for the petitioner is that fard beyan of the informant was not correctly mentioned by the police officer and he filed a protest petition dated 17.5.2007 in the Court of learned Chief Judicial Magistrate stating therein that on the date and time of the occurrence the deceased was returning after getting grinded the gram and in the way accused Bhushan Chauhan and Azad Yadav had 3 made altercation with the deceased. During that altercation, Azad Yadav instigated co- accused Bhushan Chauhan to kill the deceased and, thereafter, Bhushan Chauhan shot fire at Kailu Yadav causing his death. Informant as well as other cattle graziers Bali Yadav son of Ramdeo Yadav and Pandit Jee, son of Lakhan Yadav saw giving shot to the deceased and both of them running away from the place of occurrence. 4. It is further contended that again the petitioner filed another protest petition dated 14th September 2007 in the Court of learned Chief Judicial Magistrate that Kailu Yadav was murdered by accused Bhushan Chauhan and Azad Yadav, opposite party no. 2. Again the petitioner has filed the protest petition dated 26.10.2007. 5. After investigation, the police submitted charge-sheet against the accused, Bhushan Chauhan for the offence punishable under Section 302 I.P. C. and 27 of Arms Act and the complicity of the co-accused Azad Yadav was not found. Thereafter, the cognizance has been taken against accused Bhushan Chauhan only by the learned Chief 4 Judicial Magistrate vide impugned order dated 26.6.2008 6. The main contention of learned counsel for the petitioner is that the protest petition and the other materials were before the learned Chief Judicial Magistrate and he ought to have taken cognizance against accused Azad Yadav, opposite party no. 2. He has further contended that after receipt of the charge-sheet, learned Magistrate has three options. He may agree with the final report and accept it and close the proceeding or he may give direction to the police to make further investigation or he may take cognizance of the offence if in its opinion the facts set out in the final form constitute an offence notwithstanding contrary conclusion of the Investigating Officer. It cannot be said that the Magistrate cannot disagree with the report while exercising its power under Section 190 Cr.P.C.. In support of his contention, he has relied upon decisions of this Court in the case of Ashok Yadav & Anr. Vs. State of Bihar, reported in 2006(1) PLJR 204 and in the case of Nathun Yadav & Anr. Vs. State of Bihar, reported in 2001(4) PLJR 754. 5 7. On the other hand, the contention of learned counsel for opposite party is that opposite party no. 2 was not named in the FIR and the petitions filed by the informant-petitioner do not amount to protest petition as it appears from the petitions filed by the informant. He has further submitted that there is no material on record to show the complicity of the opposite party no. 2 in the alleged offence, as such the learned Magistrate has not taken cognizance against him. 8. After hearing learned counsel for both the parties and on perusal of the material on record it appears that FIR was lodged against the accused Bhushan Chauhan only for the occurrence took place on 13.5.2007. When the informant-petitioner came to know that the name of co-accused has not been mentioned in the fard beyan, he filed a protest petition in the Court of learned Chief Judicial Magistrate at the earliest on 17.5.2007. Again he filed petition in the Court of learned Chief Judicial Magistrate on 14.9.2007 and again on 26.10.2007. From reading of all these three petitions it 6 appears that protest was made against the police and allegations were made against opposite party no. 2. After investigation the police has submitted charge-sheet against co- accused Bhushan Chauhan and the complicity of accused Azad Yadav has not been found. It was open to the learned Chief Judicial Magistrate to take recourse to three options. He may agree with the final report and accept it and close the proceeding or he may give direction to the police to make further investigation or he may take cognizance of the offence if in its opinion the facts set out in the final form constitute an offence notwithstanding contrary conclusion of the Investigation Officer. It cannot be said that the Magistrate cannot disagree with the report while exercising its power under Section 190 of Cr.P.C. as it has been held in the decision reported in 2006(1) PLJR 204 (supra). The petitioner has no grievance against the order taking cognizance against co-accused Bhushan Chauhan. He has only grievance that learned Magistrate should have differed with the finding of the Investigating Officer and should have taken cognizance against opposite 7 party no. 2 against whom there is material to show his complicity in the alleged offence. 9. Considering the facts and circumstances stated above, learned Magistrate is directed to consider the material available on record for considering the facts whether there is material against accused, opposite party no. 2. The Hon’ble Supreme court in the case of Raghubans Dubey vs. State of Bihar, reported in AIR 1967 page 1167 has held that once the Magistrate takes cognizance, 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 there are material against the other accused persons for issuance of summons, he can summon the accused. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of offence. 10. With the aforesaid observation and direction, this application stands disposed of. Patna High Court Dated 11th of August 2011 N.A.F.R/Kanchan (Amaresh Kumar Lal, J.)