IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29383 of 1999 MOHD. SHAMIM S/O LATE SALIM R/O VILLAGE-BARA SUMERA, P.S. KURHANI, DISTT-MUZAFFARPUR…………………………..PETITIONER Versus STATE OF BIHAR ………………………………………..OPPOSITE PARTY. ----------- For the petitioner:- Mr. Ashoka Jung Bahadur, Adv. Mr. Nasimul Hoda, Adv. Mr. Md. Anis Akhtar, Adv. For the State:- Mrs. Veena Kumari Jaiswal, APP. ----------- 5. 27-Apr-2010 Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner has challenged the order of cognizance dated 11.1.1999 and issuance of process pursuant to that against him in Kurhani P.S. Case No.167/98 for offences under Sections 341, 323, 448, 504, 354, 326, 307/34 of the IPC. 3. At the relevant time the matter was pending before the learned Sub Divisional Judicial Magistrate, Muzaffarpur and he had passed the impugned order of cognizance. 4. Learned counsel for the petitioner has submitted that before the police petitioner claimed a defence of alibi that he was working as an employee in the office of Bihar State Electricity Board situated at Muzaffarpur and 2 hence, he could not have participated in the occurrence and such plea was accepted by the police and therefore charge- sheet was submitted against three other accused persons named in the FIR and not against the petitioner, still learned Magistrate chose to differ from the opinion of the police and after cognizance issued process against the petitioner also. It has further been submitted that even if the Magistrate has legal competence to differ from the opinion of the police, in the facts of the case, he should not have disagreed with the opinion of the police because no witness has supported the prosecution case. A copy of the report dated 5.12.98 was produced to show that the police has recorded that except the informant, no witness has named the petitioner as an accused who participated in the occurrence. 5. The facts discussed by the learned Magistrate in the impugned order show that he was fully aware of the opinion of the police but after examining the materials in the case diary he noted certain deficiencies in the investigation and decided to take a different view, primarily on considering the evidence of the informant which supported the allegations in the FIR that petitioner 3 had given a Farsa blow on the head of the informant’s brother, Md. Moin and as per medical evidence, Md. Moin had received a grievous sharp cut injury on the head. The order of the learned Magistrate shows full application of mind to the relevant facts. He could not have indulged in weighing the value of the evidence or could not have held that informant being the only witness naming the petitioner, her evidence was not sufficient for purpose of cognizance. Hence, this Court finds no illegality in the order of cognizance under challenge. 6. Learned counsel for the petitioner has submitted that the trial of other accused persons has taken place in the mean time and in course of such trial Md. Moin did not name any of the accused persons and hence such evidence of Md. Moin may be considered by this Court to the advantage of the petitioner. Such request cannot be accepted because it is settled in law that evidence of a witness recorded in course of trial of other accused persons cannot be considered in favour or against an accused whose trial has been separated and is yet to take place. Hence, this Court finds no good reason to interfere in the matter. This 4 application is, therefore, dismissed. 7. It is made clear that any observation in this order shall not prejudice the case of the petitioner and he will be entitled to raise all his defence at appropriate stage including at the time of framing of charge. perwez (Shiva Kirti Singh, J.)