IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20769 of 2007 JOKHU BIND Versus STATE OF BIHAR & ANR ----------- For the petitioner : Mr. Ashok Kumar Mishra No.2, Advocate. For the State : Mr. Jharkhandi Upadhayay, A.P.P. ----------- O R D E R This application at the instance of one of the F.I.R. named accused of Bhabhua P.S. Case No.103 of 2006 is for the quashing of the order dated 28.11.2006 passed therein by the learned Chief Judicial Magistrate, Kaimur at Bhabhua, whereby he has taken cognizance against the petitioner also after differing from the final form submitted by the police in favour of the petitioner herein. The prosecution case is founded on the fardbeyan of one Birbal Pandey recorded at about 8.00 P.M. on 3.4.2006 at the Sadar Hospital , Bhabhua, and was in respect of an occurrence which allegedly took place earlier evening at around 5 P.M.. According to the informant, he having taken paan from the shop of Subhash Bind proceeded towards Sikathi-Ruiya Road and on reaching the same he saw his brother Hemant Pandey being assaulted by the accused persons in front of the house of Janardan Dhobi. As he proceeded to the rescue of his brother he saw Bagedar Bind armed with a katta who on seeing him fired at him, Kishori Bind was armed with Ballam, Ram Ekbal Bind, Ekbal Bind and Upender Bind were armed with Gupti and the remaining accused including the petitioner herein were variously - 2 - armed with Ballam, lathi and gupti. It is said that Hemant as a consequence of the assault fell down on the road. On hulla being raised several persons including the other brothers of the informant arrived on seeing which the accused retreated and also resorted to firing. The injured Hemant was removed to the hospital where he was declared to be dead. The cause of the occurrence is said to be the altercation which had ensued on 2.4.2006 over the she goat of Kishori Bind grazing the field of the deceased. It appears that after due investigation the police submitted a charge sheet against nine of the accused persons other than the petitioner against whom a final form was submitted. However, the learned Chief Judicial Magistrate differed from the final form and took cognizance as also against the petitioner. The grievance of the petitioner is against the action of the learned Magistrate taking cognizance against him. The specious submission advanced by the learned counsel for the petitioner, on this score, is that once the police after due investigation did not find a prima facie case against the present petitioner and a final form was submitted, it was incumbent upon the Magistrate to accept the same. It was also submitted that the law does not permit the Magistrate to differ from the police report. In support of the submissions reliance was sought to be placed on the decisions of Rameshwar Singh Vs. State of Bihar reported in 2006(4) P.L.J.R. 338 and Ram Nandan Singh Vs. State of Bihar reported in 2007(2) PLJR 825. The law on the point was laid down as far as back in the - 3 - case of Abhinandan Jha Vs. Dinesh Mishra(AIR 1968 SC 117) wherein it was held that the functions of the Magistrate and the Police are entirely different and the Magistrate cannot impinge upon the jurisdiction of the police by compelling them to change their opinion so as to accord with his view; however, he was not deprived of the power to proceed with the matter and there was no obligation on the Magistrate to accept the report if he did not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190 (1) (c). Similar view was taken in the case of All India Institute of Medical Science Vs. Union of India reported in (1996) 11 SCC 582. In the Full Bench decision of this Court in Sk. Latfur Rahman Vs. The State (1985 PLJR 640) following Raghuvansh Dubey Vs. State of Bihar (AIR 1967 SC 1167), Satpathy Vs. Tikaram (AIR 1978 SC 1568) and A.R. Antulay Vs. Ramdas Sriniwas Nayak(AIR 1984 SC 718) it was observed “taking cognizance of” means cognizance of offence and not of the offender. Then again in the case of Minu Kumari Vs. State of Bihar reported in (2006)4 SCC 359 it was observed that the report forwarded by police to Magistrate that no case made out against the accused can be ignored by the Magistrate as he is entitled to independently apply his mind to the facts emerging from investigation and take cognizance if he thinks by exercising powers under section 190(1)(b) Cr.P.C. - 4 - Due regard being had to the discussions made above, I find no merit in this application and the same is dismissed. However, the petitioner may raise the point at the time of framing charge. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 24th of July, 2008. Pradeep Srivastava/A.F.R.