IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.10058 of 2008 Shivshankar Sahni, S/o. Late Ram Prasad Sahni, resident of Village Dadar, P.S. – Ahiyapur, District Muzaffarpur ……………… Petitioner. Versus 1. The State Of Bihar. 2. Mahendra Ray, S/o. Late Bathu Ray, resident of village Shekhpura, P.S.- Ahiyapur, District – Muzaffarpur …………… Opp. Parties. ----------- 02/ 12.05.2010 Heard learned counsel for the parties. This is a petition for quashing of the order dated 24.08.2007 by which the cognizance has been taken against the petitioner for offence under Section 302/120 (B) of the Indian Penal Code. Learned counsel for the petitioner submits that the occurrence took place on 11.06.2006, though the complainant filed a petition on 12.06.2006 in which the name of the petitioner was not mentioned. Again he filed a petition on 06.07.2006, however, in that petition he imputed some motive against others and again he filed a petition dated 12.08.2006 but the police did not take action then ultimately filed a petition after three months of the occurrence and thereafter filed complaint on 11.09.2006. The said complaint was sent for institution of FIR under Section 156 (3) of the Cr.P.C and in the said petition police lodged the FIR. Learned counsel for the petitioner submits that the police did not lodge the FIR to investigate the matter and submitted final form that it is not a case of murder but a case of road accident and thereafter on protest the case proceeded. The protest was treated as 2 complaint and after recording the evidence of the witness the cognizance has been taken on the basis of the statement of the witnesses in the protest cum complaint petition. Learned counsel for the petitioner, however, submits that three petitions were filed earlier by the complainant in which the name of the petitioner was not mentioned and even the police submitted the final form and further that the doctor in his evidence has stated that the injury on the persons of the deceased may be by blunt substance or by road accident and hence, casts a suspicion and hence, on that basis challenged the order taking cognizance. However, at the stage of taking cognizance, the Magistrate applied his mind on the complaint and proceeded to enquire the matter and proceeded to take the statement of the complainant and its witnesses. However, after the completion of the inquiry the stage of 204 or 203 of the Cr.P.C comes whereby Magistrate either issues process or dismisses the complaint under Section 203 of the Cr.P.C. However, the law provides that if the Magistrate proceeds and decides to issue notice to the complaint under Section 204 of the Cr.P.C. he is required to form an opinion about the implication of the accused and at this stage the opinion of the Magistrate is final and he is required to issue summons. However, having regard to the fact that the Magistrate proceeded on complaint and formed an opinion for issuing process and at this stage the court can not meticulously examine the fact or appreciate the evidence at this stage as he is not required to appreciate 3 the evidence. Hence the Magistrate having applied its mind after taking cognizance and proceeded on complaint is not required to appreciate the material on record at this stage and hence, I do not find any merit in the petition. However, the petitioner may raise the issue at the stage of framing of the charge. Accordingly, this petition is dismissed. Kundan (Gopal Prasad ,J.)