IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51973 of 2007 1. RINKU THAKUR, SON OF NARAYAN THAKUR. 2. PRAKASH THAKUR, SON OF CHAKRADHAR THAKUR. 3. BOTH RESIDENTS OF VILLAGE-KUMADPUR, P.S. GOPALPUR, DISTRICT-BHAGALPUR. ………………………………………………………PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. ARBIND GOSWAMI, SON OF MAHESHWAR GOSWAMI. BOTH RESIDENTS OF VILLAGE KUMADPUR, P.S. GOPALPUR, DISTRICT-BHAGALPUR. ………………………………………………..OPPOSITE PARTIES. ----------- For the Petitioners : Dr. Bidhu Ranjan, Advocate. For the State : Dr. Maya Nand Jha, A.P.P. For O.P. No.2 : Mr. Brajesh Kumar Singh, Advocate. ------------- O R D E R The two petitioners who alongwith six others have been arrayed as accused in the F.I.R. of Gopalpur P.S. Case No.205 of 2005 have prayed for the quashing of the entire criminal proceeding including the order dated 15.5.2007 passed therein by the learned Additional Chief Judicial Magistrate, Naugachiya, whereby he has taken cognizance under Sections 341, 323, 324 and 307 I.P.C. against the petitioners herein against whom chargesheet has been submitted and did not take cognizance against the remaining six F.I.R. named accused against whom police submitted a final report. The aforesaid case was registered under Sections 147, 148, 149, 323 and 324 I.P.C. to which Section 307 I.P.C. was added later on as also under Section 27 of the Arms Act on the basis of the - 2 - fardbeyan given by one Arbind Goswami who named as many as eight persons including the petitioners herein as accused. The police after due investigation submitted a chargesheet only against the petitioners herein and submitted a final report in respect of the remaining six against whom the police did not find the case to be true. According to the learned Magistrate he after perusing the case diary took cognizance against the two petitioners only. The grievance of the petitioners is that the learned Magistrate has taken cognizance in a mechanical way failing to notice that there was specific allegation and materials against co-accused Chandan Thakur of having been armed and of having fired therefrom whereas there was no material at all against the petitioners. Grievance of the police having held a haphazard investigation has also been agitated. After receipt of the police report, after investigation under Section 156(3) Cr.P.C., the Magistrate may do one of the three things: (i) decide that there is no sufficient ground for proceeding further and drop action; (ii) take cognizance of the offence under Section 190(1)(b) Cr.P.C. on the basis of the police report without being bound in any manner by the conclusion of the police report and issue processes ; (iii) take cognizance under Section 190(1)(a) Cr.P.C. on the basis of the original complaint. The discretion while taking cognizance is absolutely the prerogative of the Magistrate and he may take the view that there is no sufficient evidence to justify an accused being put on trial. - 3 - Apparently, the discretion of taking cognizance being totally that of the Magistrate, the co-accused or such persons against whom chargesheet has been submitted cannot take the plea or raise an issue that the Magistrate had faulted in not taking cognizance against the persons not sent up. However, if in course of the trial, the complicity of the persons, not sent up, comes up and there is sufficient evidence indicating their involvement in the offence, the provisions of Section 319 Cr.P.C. would come into play. Due regard being had to the facts and the circumstances of the case, I find no merit in this application which is accordingly dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 10th of July, 2009. Pradeep Srivastava/A.F.R.