IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14932 of 2006 SHYAM SUNDAR SINGH & ORS Versus STATE OF BIHAR & ANR ----------- 4. 31.7.2008. Heard learned counsel for the petitioner as also the learned A.P.P. for the State. Although O.P. No.2, the complainant, had been duly served with notice, he has chosen not to appear and contest this application. It appears that one Aaditya Nath Singh, submitted a complaint before the learned Chief Judicial Magistrate, Munger, alleging commission of offences under Sections 147/148/149/380/436 and 427 I.P.C. at the hands of the 15 named accused and the same on being transmitted to the concerned police station under Section 156(3) Cr.P.C., Naya Ram Nagar P.S. Case No.63 of 2002 was registered under the aforesaid Sections and after due investigation a final form was submitted by the police. Notwithstanding the final form submitted almost after 2 ½ years, the complainant filed a protest petition on the same allegations and accusations in which he has added that the accused no.1, Shyam Sunder Singh, having truce with the police had managed to obtain a final form as against the accused persons. Having recorded the statement of the complainant on S.A. and examined the two other witnesses the learned Magistrate took cognizance of offences under Sections 147/148/149/380/436/427 I.P.C. against the 15 named accused. It has been submitted on behalf of the petitioners that the action of the learned Magistrate was illegal inasmuch as he has not - 2 - referred or considered the final form submitted by the police on the same set of allegation and has taken cognizance. It was also submitted that although there is no specific allegation regarding the offence under Section 436 I.P.C. yet the learned Magistrate without considering the materials on record has taken cognizance under Section 436 I.P.C. also. Learned counsel sought to draw my attention to the third paragraph of page 4 of the complaint wherein it has been stated by the complainant that the accused persons had resorted to damaging his khaprail house and valuable articles had been partially burnt. There is no allegation therein of the accused persons having set fire and it cannot be presumed of its own that the partial burning of the articles was due to the overt acts of the petitioners. Due regard being had to the facts and the circumstances of the case, I am of the view that the cognizance under Section 436 I.P.C. cannot be sustained in law based on the materials available on the case record. Accordingly, while quashing the cognizance in respect of offence under Section 436 I.P.C., I am of the opinion that the cognizance taken by the learned Magistrate in respect of the other offences is sustainable. The other points raised by the petitioners are their defence and if they so desire, may raise the same at the time of framing of charge. In the result, this application is allowed in part to the extent indicated above and the trial will continue as against the accused persons in respect of the other Sections of the Penal Code. - 3 - While considering the issues raised by the accused persons at the time of framing of charge, it will be open to the learned court to take into consideration the fact that the protest petition was filed after almost 2 ½ years. P.S. (Abhijit Sinha,J)