IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30617 of 2005 DABOO MASKARA @ SUSHIL KUMAR MASKARA, son of Late Sri Chedi Lal Maskara, R/o Adapur, P.S. Adapur, Ditrict East Champaran ……… Petitioner Versus 1. STATE OF BIHAR 2. Aftab Alam, S/o Tahir Ansari, R/o Kachurbari Tarva Tola, P.S. Harpur, District East Champaran …. Opp. Parties ----------- For the petitioner : M/s Arun Kumar Singh No. 3 and Rana Vikram Singh Advocates. For the State : Mr. Jharkhandi Upadhaya, A.P.P. ------- O R D E R The petitioner, one of the two F.I.R. named accused of Adapur P.S. Case No. 68 of 2003 has prayed for the quashing of the entire criminal proceeding arising therefrom including the order dated 17.2.2004 passed therein by the learned Sub Divisional Judicial Magistrate, Raxaul at Motihari, whereby notwithstanding the final form as submitted against him by the police, the Magistrate has differed therewith and has taken cognizance of offences under sections 341, 323, 325, 504 and 307 IPC as against the petitioner. Assailing the impugned order the learned counsel for the petitioner submitted that the approach of the learned Magistrate was completely erroneous considering the situation that although the specific plea of the prosecution was that the injured informant was removed to the Duncan hospital for treatment and further management, there was in fact no medical report of the hospital and the contrary report that no such person was treated at the hospital. The long standing enmity and counter version of the case was also sought to be relied upon. The 25 % disability of the 2 petitioner backed by a medical certificate was also stressed to show the incompetency of the petitioners in participating at the occurrence. Several supervision notes were also relied upon to show the innocence of the petitioner. Admittedly, the supervision notes have no legal sanctity. That apart all the issues raised by the learned counsel for the petitioner unfortunately are his defence and can be raised at the stage of framing of charge. So far as the law stands right from Abhinandan Jha Vs. Dinesh Mishra (AIR 1968 SC 117) to India Carat (P) Ltd. Vs. State of Karnataka (AIR 1989 SC 885) to Minu Kumari Vs. State of Bihar reported in (2006) 4 SCC 359 the constant view is that the Magistrate is not deprived of the power to proceed with a matter where final form is submitted by the police since there is no obligation on the Magistrate to accept the police report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding forming of the opinion by the police which is the final stage in the investigation has been provided for in section 190(1)(C) Cr.P.C. I have perused the impugned order as also the case diary which had been called for by order dated 26.8.2005 and find no illegality with the impugned order. There appears sufficient materials in the case diary to show that prima facie offence is made out against the petitioner for the court to proceed as against him. 3 Accordingly, in view of the discussions made above I find no merit in this application which is dismissed. However, the petitioner shall be at liberty to raise all these issues at the stage of framing of charge and in the event such issues are raised, the trial court shall consider the same in accordance with law without being prejudiced by the fact that the application under section 482 Cr.P.C. was dismissed. Patna High Court, Patna. Dated : The 5th of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)