IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.10212 of 2008 HARISH CHANDRA CHOUDHARY, S/O. LATE JAGDISH CHANDRA CHOUDHARY, R/V. AZAD LANE, SHEO PATH DO PULWA, CHANDPUR BELA, P.S. – JAKKANPUR, DISST.- PATNA. ………………. PETITIONER. Versus THE SATE OF BIHAR ………………. OPP. PARTY. ----------- 02/ 17.05.2010 Heard learned counsel for the parties. This petition is directed against the order dated 30.07.2007 passed by the Chief Judicial Magistrate, Patna by which cognizance was taken for the offence under Sections 341, 323, 325, 307, 504/34 of the Indian Penal Code in connection with Jakkanpur P.S. Case No. 85/07, G.R. No. 1825 of 2007. Learned counsel for the petitioner, however, contended that though the cognizance has been taken under Sections 325 and 307 of the Indian Penal Code but there is no injury report in the case diary to suggest the nature of the injury. Even then, however, the injury report has attached with petition as Annexure 8 and 8/A about the X-Ray report and report of the private hospital Dr. Ruban Diagnostics was enclosed. The prosecution case as alleged in the FIR is that there was land dispute regarding the protest and allotment of the land and there is allegation that Harishchandra Choudhary abused and assaulted by iron road upon his head causing injury and the informant got unconscious and thereafter he assaulted on the back. The injury report suggests the injury one lacerated injury on head of size 2-1/2 “XI/8” scalp deep over top of head and abrasion 1”X ½ over left region and pain over left 2 shoulders. However, the cognizance has been taken under Section 307 without injury report in the case diary attached. On submission of the charge-sheet by the police the cognizance has been taken. However, there is allegation of assault on the vital part of the body. However, there is no report of injury whether grievous or not but the cognizance taken under Section 307 of the Cr.P.C and hence it has been asserted that the cognizance has been taken under a wrong section but merely on the ground that the cognizance has been taken under wrong section, the order cannot be set aside. However, for holding whether offence under Section 307 of the Indian Penal Code is made out or not the injury report is required to be seen. However, learned counsel for the petitioner states that in the case diary the injury report has not been attached though a copy of their injury said to have been filed by the accused persons themselves has been attached. However, it is not proper to rely on this documents and further having regard to the facts and circumstances, I am not inclined to interfere with the impugned at this stage, however, the petitioner may raise the issue at the stage of framing of the charge and the court concerned shall consider the injury report and other materials. Accordingly, this petition is dismissed. Kundan (Gopal Prasad, J.)