IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8851 of 2007 1. MUNNA SINGH, SON OF SHAILESHWAR SINGH. 2. SUDHIR SINGH, SON OF SRI HARINANDAN SINGH. 3. SHAILESHWAR PD. SINGH, SON OF LATE RAMESHWAR SINGH. 4. ARBIND SINGH, SON OF SHAILESHWAR PD. SINGH. 5. PAPPU SINGH, SON OF SHAILESHWAR PD. SINGH. 6. MRITUNJAY SINGH, SON OF SRI HARINANDAN SINGH. 7. RAHUL SINGH, SON OF SHAILESHWAR PD. SINGH. ALL RESIDENTS OF VILLAGE MORIYAMA, P.S. DHANARUA, DISTRICT-PATNA. …………………………………………………………….....PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. SANTOSH KUMAR, SON OF CHITLESH SHARMA, RESIDENT OF VILLAGE MORIYAMA, P.S. DHANARUA, DISTRICT-PATNA. ………………………………………………………OPPOSITE PARTIES. ----------- For the Petitioners : M/s. Rama Kant Sharma, Senior Advocate and Laxmi Kant Sharma, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : Mr. Kinkar Kumar, Advocate. ---------- O R D E R This is an application for quashing of the order dated 27.11.2006 passed by the learned Sub Divisional Judicial Magistrate, Masaurhi, Patna, in Dhanarua P.S. Case No.182 of 2006, whereby he has taken cognizance of the offences under Sections 341, 323, 504 and 379/34 I.P.C. against all the accused persons differing with the chargesheet submitted by the police which was only against the petitioners, Munna Singh, Pappu Singh and Rahul Singh and the remaining others were shown as not sent up. It has been submitted on behalf of the petitioners that - 2 - Rajesh Kumar, son of petitioner no.3 herein, had given a written report on 30.9.2006, alleging therein that on the same day at 7 in the evening while he was coming alongwith his sister-in-laws, Sangita Devi and Saroj Devi alongwith Arun Kumar from Taregnadih to attend the Chhathi of the boy born in his family and reached near the house of his co-villager, Ramanuj Singh, Chitlesh Sharma, the informant of the present case, Manoj Kumar, Mithilesh Singh and Sidhnath Sharma, co-villagers, variously armed with lathi and danda arrived and surrounding his sister-in-laws, Sangita Devi and Saroj Devi, started abusing them and on protest being raised they started assaulting them causing injuries to both the ladies. When hulla was raised, their bhabhi came and her gold chain and ear rings were snatched and gold chain of Sangita was also snatched from her neck as was the ornaments of Saroj Devi and on the basis thereof Dhanarua P.S. Case No.183 of 2006 was registered. It is also submitted that the injuries sustained by Sangita Devi was such that she had been referred to PMCH, Patna. On this premise, it was sought to be submitted that the informant of the present case alongwith others had badly assaulted two ladies of the accused family who sustained injuries and on Dhanarua P.S. Case No.183 of 2006 being found true and chargesheet having been submitted the present false and malicious case had been filed to save their own skin. The issue of the Magistrate differing from the police report or final form submitted by the police and taking cognizance also against such persons who are shown not to be sent up is no longer res - 3 - integra and is squarely covered by a catena of decisions of the Apex Court including India Carat Private Limited Vs. State(AIR 1989 SC 885) wherein it was held that the Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of power under Section 190(1) (b) Cr.P.C. and direct the issue of process to the accused. To the same effect are the earlier decisions of the Apex Court in Raghubans Dubey Vs. State of Bihar (AIR 1967 SC 1167), Nagawwa Vs. Veeranna(AIR 1976 SC 1947), Hareram Satpathy Vs. Tikaram Agarwal(AIR 1978 SC 1568) and Joginder Singh Vs. State of Punjab(AIR 1979 SC 339). Further as held in Abhinandan Jha Vs. Dinesh Singh (AIR 1968 SC 117) 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 oopinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does 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 state in the investigation has been provided for in Section 190(1) (c) Cr.P.C. So far as the plea of the learned counsel for the petitioner of the instant case being a malicious prosecution and a counter blast to Dhanarua P.S. Case No.183 of 2006 is concerned, the same happens - 4 - to be the defence of the petitioners which cannot be looked into at this stage and the bonafide or malafide of the two cases can only be settled by leading evidence in course of the trial. In view of the discussions made above, I find no merit in this application which is accordingly dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 25th of November, 2008. Pradeep Srivastava/A.F.R.