IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27745 of 2007 SHIV SHANKAR RAI, SON OF RAM CHANDRA RAI, RESIDENT OF MOHALLA-MUSHAPUR, P.S. SAMASTIPUR(MUFFASSIL), DISTRICT- SAMASTIPUR…………………………………………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. RAJESH KUMAR SINGH @ CHAMCHAM, SON OF LATE MANI SHANKAR PRASAD SINGH @ MUNNA, RESIDENT OF VILLAGE-MEHDA SAHPUR, P.S. CHERIA BAREARPUR, DISTRICT-BEGUSARAI. AT PRESENT VILLAGE- DHARAMPUR NISHTANA, P.S. MUFFASSIL, DISTRICT- SAMASTIPUR. …………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Bhola Prasad and Anirudh Kr. Singh, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : None. ------------- O R D E R The petitioner, whose name cropped up in course of investigation but has not been chargesheeted in connection with Samastipur(Muffassil) P.S. Case No.526 of 2001, has prayed for the quashing of the order dated 12.6.2006, passed therein by the learned Chief Judicial Magistrate, Samastipur, whereby he has taken cognizance under Sections 302, 379, 201/34 I.P.C. against the petitioner and others after having differed from the chargesheet submitted by the police wherein the name of the petitioner was shown in column-12 as not having been sent up. The aforesaid police case was registered against unknown under Sections 302, 379, 201/34 I.P.C. on the basis of the fardbeyan - 2 - given by one Rajesh Kumar Singh, impleaded herein as O.P. No.2, at around 9.30 A.M. on 29.12.2001 in respect of an occurrence which took place on the preceding night. The police after due investigation submitted a chargesheet only against one non F.I.R. named accused Choudhary Rai and the names of the petitioner and one Keshari Rai, were shown therein in column-12 as not sent up. However, the learned Magistrate, appears to have taken cognizance against all the persons, named in columns 11 and 12 of the chargesheet by the impugned order on a finding that from perusal of paragraphs 42, 50, 51, 60 and 96 of the case diary there were sufficient materials against all the accused so as to proceed against them. The grievance of the learned counsel for the petitioner is that it was almost after 5 years on 12.6.2006 that the learned Magistrate after perusing the chargesheet dated 30.11.2004 and the case diary has on the same set of evidence taken cognizance of the offence against all the accused including those not sent up without considering the materials available in the case diary and that too without proper perusal of the paragraphs of the case diary mentioned in the impugned order. A Bench of this Court in Hiralal Gupta Vs. State of Bihar, reported in 2007(2) PLJR 150 by placing reliance on the case of H.N. Rishbud Vs. State of Delhi (AIR 1955 SC 196) has dealt with the purpose of investigation as provided under Chapter-XII Cr.P.C. and the role of criminal justice and came to the finding that the opinion - 3 - formed by the investigating agency has got sanction of law and that it is not a mere wasteful exercise and having been formed after collecting materials from the spot and examination of all concerned persons including prosecution and the accused. It is true that the learned Magistrate while taking cognizance may take cognizance irrespective of the view taken by the police and this can be done after exercising his judicial discretion. However, there must be some strong and sufficient grounds for the Magistrate to differ from the opinion formed by the Investigating Officer. In the instant case, the Magistrate has not disclosed the reasons for his having differed from the statement of the witnesses in the case diary. He has merely referred to the paragraphs in the case diary without adverting to the materials therein against those named in column-12. Due regard being had to the facts and the circumstances of the case as mentioned/discussed above, there is sufficient force in the argument of the learned counsel for the petitioner. Although O.P. No.2 had appeared by filing vakalatnama, yet at the time of hearing of this application, none was present on his behalf. In the result, this application is allowed and the impugned order, in respect of the petitioner, is hereby set aside. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 10th of July, 2009. Pradeep Srivastava/A.F.R.