IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34299 of 2006 PREM SHANKER PRASAD Versus STATE OF BIHAR ----------- 3 7.8.2008 Heard Sri Arun, learned counsel for the petitioner, Sri Jharkhandi Upadhaya, learned A.P.P. for the State and Sri Subhesh Pandey, learned counsel for the informant. Through this application the petitioner seeks the quashing of the order dated 18.5.2006 passed by the learned Chief Judicial Magistrate, Supaul, in connection with Supaul P.S. Case No. 14 of 2005 registered under sections 147, 148, 379, 323, 324, 307, 504 I.P.C. , whereby cognizance has been taken under section 323, 307/34 I.P.C. only. On the basis of a written report submitted by one Bhim Shankar Prasad on 17.2.2005 the aforesaid Supaul P.S. case was registered on the allegation that at about 9 – 10 A.M. on 12.2.2005 while the informant was engaged in getting the centring work done for the plastering of the southern wall his brother Prem Shankar Prasad @ Paro Babu told him to desist from constriction work and when he refused his brother went to his darwaza wherefrom his two sons Ajit Kumar @ Baua and Ranjit Kumar both armed with dabia and Uttam Kumar @ Mannu and another person who came over and abused and assaulted him as a result whereof he fell to the ground. Uttam - 2 - Kumar is said to have pressed him with iron netting and Ajit and Ranjit caught hold of both his hands whereupon Prem Shankar having ordered to kill him, pressed his chest with his legs and Ranjit with dabia in his hand inflicted a blow on his head resulting in bleeding injury. The informant is said to have raised hulla which attracted the people of the neighbourhood and the passersby who arrived and seeing them all the 5 accused persons fled. At the time of departure. Uttam is said to have taken away Rs. 5000/- from his pocket and Ajit is said to have snatched a wrist watch worth Rs. 1500/- The informant was moved to the Supaul Hospital on a motorcycle wherefrom he was referred to the Saharsa Hospital. The delay for lodging the written report is said to be that attempts were being made by the well wishers to settle the incident amicably and when no constructive result was forth coming he filed the written report. It has been submitted by the learned counsel for the petitioner that the petitioner and the informant are full brothers and it was due to family dispute that the petitioner had been falsely implicated in the instant case. It has further been submitted that it was apparent from the injury report that the petitioner had sustained only one injury namely a lacerated wound on the left parietal area of head 3” x ½ “ x scalp deep, which according to the opinion of the doctor - 3 - was simple in nature and caused by hard and blunt substance which would mean that no offence under section 307 I.P.C. can be said to have been committed and notwithstanding the same the learned Magistrate had taken cognizance under section 307 I.P.C. also. The informant who has appeared in this application suo motu without being noticed has also filed a show cause wherein it has been submitted that looking at his condition he had been removed at Dr. Ram Manohar Lohia Hospital, Delhi, for further treatment and management as his case was very serious and the doctors attending upon him at Saharsa had advised him for his removal for cardiac treatment. After he returned from Delhi he had filed all the relevant papers and prescriptions granted by the Dr. Ram Manohar Lohia Hospital at Delhi and on seeing the gravity of the offence and its result the learned Magistrate while taking cognizance had also taken cognizance under section 307 I.P.C. Admittedly a case can be said to be instituted in a Court only when the court takes cognizance of the offence alleged therein and this may take place either on a complaint or on a police report. It is also well settled that the complaint and the police report operate on two different fields. In the case of a cognizable offence the Magistrate takes cognizance when - 4 - police have completed their investigation and come to the Magistrate for issue of the process and he can look into no other paper except the charge sheet submitted by the police and the materials available in the case diary. In the instant case it appears that the Magistrate also took into account the medical papers submitted by the informant and thereafter took cognizance under section 307 I.P.C. although the injury report available in the case diary indicated only one lacerated wound which was simple in nature and caused by hard and blunt substance. In that view of the matter the impugned order taking cognizance under section 307 I.P.C. is hereby quashed and the application is allowed. However, it is made clear that if in the course of recording of evidence during the trial materials come on record to indicate the commission of offence under section 307 I.P.C. then it shall be open to the informant or the prosecution to file a petition before the trail court regarding taking of cognizance also under section 307 I.P.C. and in that event the Court in seisin of the trial will act in accordance with law. Spd/- (Abhijit Sinha, J.)