IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51232 of 2007 MANISH CHAUBEY, son of Ashok Kumar Choubey, R/o – Village – Guruwa, P.S. Maghon, (Kundi) District – Gurwa ------------------ Petitioner. Versus 1. STATE OF BIHAR 2. KAUSHALENDRA KUMAR, son of Kaleshwar Singh, Vill – Lalaro, P.S. – Obra, District – Aurangabad. -------------- Opp. Parties. ------- For the petitioner : Mr. Ram Krishna Pd. Yadav, Adv. For the State : Mr. Ajay Mishra, APP. ------- 5 15.04.2010 This application has been preferred under Section 482 of the Criminal Procedure Code seeking quashing of the order dated 23.07.2007 passed by Additional Chief Judicial Magistrate, Patnacity, Patna, in Sultanganj P.S. Case No. 487/2006, G.R. No. 2124/2007 for offences under Section 364(A) and 120B of the Indian Penal Code against the applicant. It is contended by learned counsel for the applicant that this case instituted against unknown person. Police after investigation submitted charge sheet against some persons but, did not sent up applicant and other two accused persons whose name though emerged during the investigation but, no material could be found. But, learned court without assigning any reason took cognizance against these three persons also ignoring the fact that even the victim boy in his statement did not name the petitioner. Learned counsel representing the State objected the - 2 - prayer submitted that the court below within his jurisdiction passed appropriate order. It was not mandatory for him to accept the opinion of the Investigating Officer exonerating the applicant. Learned counsel for the petitioner tried to go through the contents of carbon copy of the case diary which was called for in pursuance of the order dated 20.02.2008 by which further proceeding of the case was also stayed till the next date. Main reliance was placed by the learned counsel for the petitioner in paragraph nos. 67 and 217 of the case diary, but, it was difficult for members of the Bar to go through the specific two paragraphs in their entirety as well as other contents of the case diary. Since some vital paragraphs were not easy to read. I also tried to go through the contents but, all went in vain, it is difficult to arrive at any definite conclusion. It is undisputed position that the case was instituted against unknown on the written application of cousin of victim intimating that he is untraceable and apprehending that he has been kidnapped for ulterior purpose. The case was instituted and during investigation, name of applicant also emerged. The investigating agency submitted charge sheet against a few kept the investigation pending against some of the suspects but, at the same time finding the applicant Manish Choubey and two others Nand Tiwary and Sanjay Kumar innocent did not sent up them for trial but, the court below by an impugned order took - 3 - cognizance against all the persons whose names mentioned in column 11 and 12 both of the charge sheet i.e. the applicant and two others Sanjay Singh and Nand Tiwary. No doubt, the court below has stated that he has gone through case diary and other materials available but, he has not referred any such materials even relevant paragraphs of the case diary relying upon which he differ with the opinion of the investigating agency. The court empowered to take cognizance on submission of investigation report has every right to either accept or differ with the opinion of investigating agency but, at the same time, if a different view is taken. The order must indicate/whisper the materials forming basis for such differences. It is true that at the time of taking cognizance threadbare discussion of the materials are not required but, once there is difference of opinion, it should appear from the order to have some reason and basis but in the instant case, it completely lacks. Normally the circumstances stated above, matter should be remitted to the court below for passing fresh reasoned order, after going through the materials available in the case diary as well as on the record forming basis an opinion other than investigating agency arrived at but, since three years have already lapsed, further delay in progress of the case may hamper in the interest of justice. So, it seems desirable that - 4 - applicant being heard at the time of hearing on the point of charge and the trial court on consideration of entire materials collected during investigation and appearing on record pass appropriate order without being a prejudice of instant non- interference in the impugned order passed by the court below. Thus, with the above observations and liberty, this application stands disposed of and the court below are directed to proceed expeditiously with the proceedings of the case. Rajeev/ (Akhilesh Chandra,J.)