IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9109 of 2007 RANJIT LAL BHAIYA, SON OF KISHAN LAL BHAIYA, RESIDENT OF MOHALLA-KARSILLY, POLICE STATION-CIVIL LINES, DISTRICT- GAYA……………………………………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. BABLU LAL DHOKARI, SON OF GOPAL LAL DHOKARI, RESIDENT OF MOHALLA-KRISHNA DWARIKA, P.S. CIVIL LINES, DISTRICT-GAYA. ………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Baxi S.R.P. Sinha, Senior Advocate and Rahul Nath, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : Mrs. Anjana Prakash, Senior Advocate and Ravindra Kumar Priyadarshi, Advocate. ------------ O R D E R One of the four F.I.R. named accused of Gaya(Civil Lines) P.S. Case No.284 of 2005 has prayed for the quashing of the order dated 27.10.2005 passed therein by the learned Chief Judicial Magistrate, Gaya, whereunder he has taken cognizance under Sections 307, 379, 324 and other minor sections of the Penal Code against all the four F.I.R. named accused including the petitioner. Briefly stated, the prosecution case which is based on the fardbeyan given by one Bablu Lal Dhokari, impleaded herein as O.P. No.2, inter alia is that when at around 9 P.M. on the night of 14.12.2005 he was returning to his house from the Vishnupad Temple, he was suddenly surrounded by the four F.I.R. named accused persons and 8-10 unknown others. It is also alleged that they started abusing - 2 - him and demanded Rs.50,000/- as rangdari and when he refused to oblige accused Kishan Lal Bhaiya with the intention to kill him gave a fasuli blow on his neck causing bleeding injuries and co-accused Ranjeet Lal Bhaiya with the intention to kill him opened fire from his pistol which providentially missed its mark. This was followed by Tuttu Lal Bhaiya assaulting him on his head by lathi which again caused bleeding injuries. It is also alleged that the cries of alarm raised by him attracted the neighbours including Lalit Singh and Mritunjay Kumar. It is further alleged that while departing accused Kamal Lal Bhaiya took out Rs.780/- from his pocket and Ranjeet snatched a golden chain worth Rs.8000/- from his neck. On the people of the neighbourhood assembling the accused persons left after advancing threats. The grievance of the petitioners is that although the case had been registered under Sections 147, 148, 323, 324 and 379 I.P.C. only and a charge sheet only thereunder was submitted the learned Chief Judicial Magistrate, Gaya, surprisingly took cognizance under Sections 147, 148, 149, 323, 324, 379 and 307 I.P.C. against all the four accused notwithstanding the fact that the witnesses examined in course of investigation did not support the allegation of firing in the occurrence by any one of the accused. The learned counsel for O.P. No.2 as also the learned A.P.P. on the other hand submitted that in the F.I.R. there is specific allegation of injury on the neck by means of fasuli as also of firing which of course missed its mark. The injury report also reveals that - 3 - the injury on the neck was grievous in nature. Admittedly, at the stage of cognizance, cognizance is taken of the offence. It is also a settled law that the Magistrate is not bound to accept the opinion of the police submitted to him and can disagree and differ with it on a consideration of the materials appearing in the case diary. In this case there is specific allegation in the F.I.R. of firing being resorted to and a fasuli blow being inflicted on the informant apart from the assault with lathi. As held in India Carat Private Limited Vs. State (AIR 1989 SC 885) a Magistrate may take cognizance irrespective of the view taken by the police. Then again for taking cognizance only a prima facie case has to be established and a meticulous examination of probabilities and improbabilities is not required to be applied. In the circumstances discussed above, I am of the opinion that the impugned order does not suffer from any apparent illegality and is not required to be interfered with. The application is accordingly dismissed. Before I part, I would like to mention that the petitioner shall be at liberty to raise all these issues raised in this application at the time of framing of charge and in the event the petitioner raises such issues, the court will dispose of the same in accordance with law without being prejudiced by this order of dismissal. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 3rd of March, 2009. Pradeep Srivastava/A.F.R.