IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.53602 of 2007 1. MAHANTH RAM SUNDER DAS SON OF LATE MAHANTH RAM SWARUP DAS 2. SHAMBHU SINGH, SON OF LATE RAM LAKHAN SINGH BOTH PERMANENT RESIDENT OF PAKTOLA TOLE, BHATOLIA MATH, P.S.- DUMRA, DISTRICT- SITAMARHI AT PRESENT PEITITIONER NO. 2 SHAMBHU SINGH RESIDING AT KAILASHPURI, WARD NO. 8, DUMRA, P.S.- DUMRA, DISTRICT- SITAMARHI. Versus 1. THE STATE OF BIHAR 2. PREMI RAI SON OF LATE KISHORE RAI, RESIDING AT VILLAGE- PAKTOLA TOLE, HANUMAN NAGAR, P.S.- DUMRA, DISTRICT- SITAMARHI For the petitioners : Mr. Rana Pratap Singh, Sr. Advocate Mr. Sumant Singh, Advocate For the O.P. no. 2 : Mr. Pushkar Narain Shahi, Advocate Mr. Vinod Kumar, Advocate. For the State : Mr. Jharkhandi Upadhyay, APP ----------- 3 08.09.2010 Heard learned counsel for the petitioner and learned counsel for O.P. no. 2. Petitioners are uncle and nephew respectively. One of them has been named in the F.I.R. which was lodged on 29.7.2006 under Sections 302, 201/34 of Indian Penal Code. They have challenged the order taking cognizance passed by learned Chief Judicial Magistrate, Sitamarhi based on the charge- sheet. They thus want the prosecution to be quashed at its initial stage. It appears from the record that the police on institution of the F.I.R. made investigation and came to the conclusion that the allegation against the petitioners was/were not substantiated in course of investigation. Learned Magistrate perused the case diary and other documents filed along with police papers and has 2 come to the conclusion that there is a prima facie case and accordingly cognizance has been taken. Petitioners assail the order on the ground that learned Magistrate while differing with the opinion formed by the Investigating Officer has to assign reason in support of the order. It is also submitted that going by the paragraphs referred to in the order impugned, it would appear that a concerted effort has been made by the prosecution to improve upon the case which was set out in the F.I.R. It is not in dispute that some of the paragraphs referred to in the impugned order do incriminate the petitioner but the submission is that they are not worth credence. The statement of mother and father of the victim as also the restatement of the informant were at variance with the case/allegation set out in the F.I.R. In this connection, learned counsel for the petitioner draws attention of the Court to paragraph 6, 7 and 8 of the petition. It is not in dispute that the Court is the final arbiter. The only requirement is that while differing with the opinion formed by the Investigating authority, the Court has to look to the police papers filed along with the charge-sheet/final form in order to lend assurance that there is/are prima facie materials justifying the order taking cognizance. At this stage, the Magistrate is not required to see as to whether the materials collected in course of investigation would be sufficient enough to secure conviction. Considering the scope of the jurisdiction exercised by 3 learned Magistrate, I am convinced that there is no illegality or infirmity in the order meriting interference. There is no merit in this application. It is accordingly dismissed. pkj ( Kishore K. Mandal, J. )