IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.41409 of 2008 1. KAUSHLENDRA NARAYAN @ LALAN S/O ARUN KUMAR 2. SUBODH KUMAR S/O- SRI BIHARI SINGH BOTH RESIDENT OF MOHALLA TUTWARI, P.S.- KOTWALI, DISTRICT- GAYA. Versus 1. THE STATE OF BIHAR 2. ARBIND KUMAR, S/O- SRI JEETENDRA MOHAN SINGH RESIDENT OF VILLAGE KAZICHAK, P.S.- MAGADH MADICAL COLLEGE, DISTRICT- GAYA For the petitioners : Mr. M.S. Madhup, Sr. Advocate. For the O.P. : Mr. Nand Kishore Pd Sinha, Advocate For the State : Mr. Jharkhandi Upadhyay, APP ----------- 4 03.08.2010 Heard learned counsel for the petitioner, learned counsel for the opposite party and learned counsel for the State. Petitioners are aggrieved by the order dated 16.7.2008 passed by learned Chief Judicial Magistrate, Gaya in G.R. case no. 2555/2007 (Tr. No. 1567/2008) whereby cognizance of the case has been taken. Order of the Magistrate reads as follows: “Heard. Perused the case record as well as the case diary and final report. I find a prima facie case against the accused Kaushlendra Narayan @ Lalan and Subodh Kumar is made out under Sections 448, 393 and 384 of the IPC. Accordingly, cog. is taken for the aforesaid Sections against the aforesaid both the accused.” A brief background facts of the case may first be indicated in order to appreciate the issue involved and submissions advanced on behalf of the parties. O.P. no. 2 lodged an F.I.R. being Magadh Medical College P.S. case no. 78 of 2007 alleging inter alia that on 7.11.2007 while he was sitting in his room over his raiyati land in khata no. 40 plot nos. 82, 118 and 120 measuring a total area of 12 acres 7 decimals situated in village Kazichak, the 2 accused persons boarding on two motorcycles and one car arrived at the scene and trooped into the room of the informant and threatenings were held out to them at gun point. On protest, they were beaten up and one of the co-accused committed theft of Rs. 2,000/- from the room whereas other co-accused committed theft of other articles kept inside the room. They were also threatened with dire consequences. While retreating, they made a demand for a sum of Rs. 20 lacs as “rangdari”. The investigation was taken up by the investigating agency. In course of investigation, it was found that the informant and his father had shown the aforesaid land belonging to them and had taken several loan(s) from the government. Report of the District Agriculture Officer (Annexure-5) indicates that the informant and his father had fraudulently obtained certain loans on the lands in question from the government. It was found that the land(s) did not belong to them. Accordingly, it was thus held that they were liable to be proceeded against under diverse sections of the Penal Code. Having noticed all these facts, the investigating officer, upon conclusion of investigation, submitted a final form(Annexure-2) in terms of Section 173 of Cr.P.C. whereby the petitioners herein were not sent up for trial. It was concluded by the Investigating Officer that the matter in issue reflects a dispute which essentially civil in nature. Learned Magistrate, on a consideration of the materials placed along with police report i.e. case diary, found that a prima facie case is made out against the accuseds and accordingly, cognizance was taken under Sections 3 448, 323 and 384 of the Indian Penal Code. Learned counsel for the petitioners while assailing the impugned order submits that learned Magistrate has committed a serious illegality in not assigning any reason for differing with the police report whereby the petitioners herein were not sent up for standing trial. It is next contended that for want of assigning reasons for his differing with the police report, the order stands vitiated in law. He relies on a judgment of a Single Judge of this Court in the case of Anand Kumar Khatri vs. State of Bihar reported in 2004 (4) P.L.J.R. 455 (paragraph 6). Elaborating further, it is submitted that taking cognizance of a case and thereby issuing summons against the accuseds for facing a trial is a sensitive exercise of jurisdiction which touches the liberty of person who is sought to be summoned to face the trial. He relies on the following judgments: (i) Kailash Chaudhari vs. State of U.P. reported in 1994 CRI. L.J. 66 (paras 11 and 12) (ii) Pepsi Foods Ltd. versus Special Judicial Magistrate A.I.R. 1998 S.C. 128=(1998) 5 S.C.C. 749. Learned counsel appearing on behalf of the opposite party, on the other hand, submitted that no additional reason is required to be set out in the order taking cognizance for differing with the final report whereby the accuseds have not been sent up for trial. It is contended that the opinion of the Investigating 4 authority/agency in such matter is not conclusive and/or decisive. If the Magistrate, on going through the materials placed along with the final report, is satisfied that there is prima facie case to proceed against the accused persons, the learned Magistrate shall be within his competence in passing the impugned order. He relies on a Full Bench Judgment of this Court rendered in the Case of Kuli Singh versus State of Bihar since reported in A.I.R. 1978 Patna 298. It is next contended that the final report (Annexure-2) would indicate that the Investigating Officer, on the basis of materials collected in course of investigation, came to the conclusion that the matter was essentially a civil dispute. It is contended that even if said conclusion is accepted then also the Court was justified in taking cognizance of the case as a criminal proceeding can be levied and continued even in case where the dispute basically pertains to the civil rights of the parties if the allegations are such which constitute the offence(s) and the same found support during investigation. I have considered the submissions advanced on behalf of the parties and perused the materials placed on record. Parties before me are in agreement on one point and that is the jurisdiction of the court to differ with the police report and take cognizance even though the accused were not sent up for trial under the final report. They further agree that the court is the final arbiter. Submissions of the learned counsel for the petitioners is that the Magistrate, in the particular facts of the case, was expected to go through the materials available in the police paper which includes case diary 5 and thereby to satisfy itself as to whether a prima facie case is made out or not particularly when the opinion of the Investigating Officer was that no case was made out meriting submission of charge-sheet sending them up for trial. It has been contended that the law has taken strides. As on today, any action of the court which is found to be mechanical in nature and/or suffering from non- application of judicial mind, the superior courts are required to interfere therewith in view of the position of law as enunciated in the case of Kailash Chaudhari (Supra) and Pepsi Foods Ltd. (Supra). Parallel rights of a citizen enshrined under Article 21 of the Constitution of India have since then spread its wings. Submission of the learned counsel for opposite party is that learned Magistrate, in law, is in complete command over the proceeding if it has been found that a prima facie case is made out against the accused persons then interference with the said order would not sub-serve the ends of justice. I have set out the prosecution case and possible defence of the accuseds in extenso at the outset in order to show that there was/were chances of misutilising the process of the court at the hands of the informant. Learned Magistrate has recorded a finding in the impugned order that on a perusal of the case diary, it has been found that a prima facie case is made out. Considering the issue from the angle emphasized in the case of Kailash Chaudhari (Supra) and Pepsi Foods Ltd. (supra), this Court is of the view that, in the particular facts of the case, the order impugned faintly reflects 6 non-application of the judicial mind of the learned Magistrate. It was within the competence of the court to go through the case diary and other materials placed along with the police report and to have recorded finding that the materials reflected from different paragraphs of the case diary do indicate presence of a prima facie case. This has not been done. This Court in the case of Anand Kumar Khatri (supra) has taken a view that in a matter where final report not sending up the accused has been submitted, the Magistrate has to satisfy itself from different materials appearing from the record in order to come to the conclusion that a prima facie case has been made out. Learned Magistrate could have indicated in the order that materials reflecting from different paragraphs of the case diary do constitute a prima facie case although the I.O. has not found the same to be sufficient enough for filing charge-sheet in the case. Judging the impugned order from this angle, I am of the view that the impugned order falls short of the same. The criticism of the impugned order on the ground that it is mechanical and suffers from non-application of judicial mind gains some strength. Consequently, the application is allowed and the order impugned dated 16.7.2008 is set aside. This order shall, however, not preclude the court below from passing a fresh order in accordance with law. pkj ( Kishore K. Mandal, J. )