CRIMINAL MISCELLANEOUS No.27704 OF 2001 In the matter of an application under Section 482 of the Code of Criminal Procedure ----------- Krishna Ballabh Prasad Sinha, Son of Deonath Prasad Sinha, Permanent resident of Village-Ahiyapur Aurani, P.S. Pakri Burma, District-Nawadah ------------ Petitioner Versus THE STATE OF BIHAR ---- Opp.Party --------- For The petitioner: S/Sri Subodh Kumar Jha and Jitendra Kr. Pandey, Advocates For the State : Sri A.M.P.Mehta, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Learned counsel for the petitioner files supplementary affidavit. Let it be kept on record. 2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 17.08.2001 passed by the learned Chief Judicial Magistrate, Jehanabad in Jehanabad P.S. Case No.397 of 2000. By the said order, the learned Chief Judicial Magistrate has taken cognizance of offence under Sections 409 and 420 of the Indian Penal Code. The petitioner has further prayed for quashing of the entire prosecution in Jehanabad P.s. Case No.397 of 2000 3. Short fact of the case is that on the basis of a written information given by the Executive Engineer, Tube Well Division, Jehanabad , an F.I.R. vide Jehanabad P.S. Case No.397 of 2000 was registered for the offence under Section 409 and 420 of the 2 Indian Penal Code against the petitioner. The informant was one Prakash Bihari Lal, Executive Engineer. It was alleged in the F.I.R., which was filed on the basis of an enquiry report that the petitioner, who was posted as Divisional Accountant in the Tube- Well Division, Jehanabad, had taken Travelling Allowance without conducting the travel. The other allegation was also made that without being promoted, he had withdrawn the salary on a higher scale. 4. After registering the F.I.R., the police investigated the same and during the investigation it was found by the Investigating Officer that it was a case of mistake of fact and accordingly , a final form was submitted on 28.2.2000 specifically mentioning therein that during the investigation it was found that with the permission of the Executive Engineer he had conducted a travel and withdrew the Travelling Allowance and finally it was concluded by the Investigating Agency that it was a case of mistake of fact. A copy of the final report has been brought on record as Annexure-5 to the petition, which is at pages 40-43. Surprisingly, after filing of the final report, the informant, Sri Prakash Bihari Lal, the Executive Engineer to the reasons best known to him filed a protest petition in the court of the learned Chief Judicial Magistrate in Jehanabad P.S. Case No.397 of 2000 and thereafter the learned Chief Judicial Magistrate by its order dated 17.8.2001 took cognizance of offence under Sections 409 and 420 of the Indian Penal Code and directed for issuance of 3 notice for securing attendance of the petitioner and transferred the case record to the court of Sri Rajeshwar Tiwary, Judicial Magistrate, 1st Class, Jehanabad. 5. Aggrieved with the order of cognizance dated 17.8.2001, the petitioner approached this Court by filing the present petition, which was admitted on 18.2.2002 and while admitting, it was directed that during the pendency of this application, further proceeding in Jehanabad P.S. Case No.397 of 2000 pending in the court of the Chief Judicial Magistrate, Jehanabad, shall remain stayed. The order of stay is still continuing. 6. Sri Subodh Kumar Jha, learned counsel appearing on behalf of the petitioner has firstly argued that even on the basis of averment made in the F.I.R. no offence is made out. Learned counsel for the petitioner has further submitted that besides merit of the case on technicality also, the order of cognizance is liable to be set aside. It was submitted that once on the basis of written report, an F.I.R. was instituted and the case was thoroughly investigated by the police, the informant, who was Executive Engineer, was having no locus to file a protest petition in his personal capacity after filing of the final report by the police. It was submitted that there was no allegation against the petitioner to commit an offence against the informant in his personal capacity and, as such, the informant was having no authority to file protest petition in the case. It was further submitted that even though the 4 protest petition was filed whether it was legal or illegal, the learned Magistrate at the time of hearing was not required to hear the informant. It was submitted that once an F.I.R. was filed against an accused, it was a case in between the State and the accused and, as such, the learned Magistrate was not required to hear the informant in his personal capacity. Accordingly, it was submitted that the order of cognizance is liable to be set aside on this ground alone. 7. Sri A.M.P.Mehta, Learned Addl.Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioner. It was submitted that it was a case of defalcation of the government fund and, as such, the order of cognizance may not be interfered with that too while exercising power under Section 482 of the Code of Criminal Procedure. Accordingly, he has prayed to reject the present petition. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. In this case, final report was submitted by the police after investigation as a case of mistake of fact and once the police had not forwarded the petitioner to face trial, the learned Magistrate, while taking cognizance differing with the police report , was required to at least assign some reasons. On perusal of the impugned order, it appears that the learned Magistrate in a mechanical manner has passed the order that too after hearing the informant also. It is true that while taking cognizance in affirmance with the police report, 5 there is no requirement for assigning reason at the time of cognizance, but at the time of differing with the police report, it is mandatory on the part of the learned Magistrate to assign succinctly reasons . In absence of any reason as well as in view of the fact that protest petition was entertained by the learned Magistrate , this Court is of the opinion that the order of cognizance is liable to be set aside . 9. Accordingly, the order of cognizance dated 17.8.2001 passed in Jehanabad P.S. Case No.397 of 2000 by the learned Chief Judicial Magistrate, Jehanabad , is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 18th August,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )