IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.8521 OF 2008 KAMESHWAR MANJHI, SON OF BANARASI MANJHI, RESIDENT OF VILLAGE GALIMAPUR, POLICE STATION GARKHA, DISTRICT SARAN AT CHAPRA VERSUS THE STATE OF BIHAR ********* 2 16/02/2010 Heard learned Counsel for the petitioner, the informant and the A.P.P. appearing on behalf of the State. The petitioner is aggrieved by the order dated 02.05.2007 by which the Chief Judicial Magistrate, Saran has taken cognizance for the offences alleged to have been committed under Sections 341, 323, 324, 325, 307, 302/34 of the Indian Penal Code and Section 27 of the Arms Act. The occurrence took place on 03.04.2005 for which Garkha Police Station Case No. 19 of 2005 was instituted in which petitioners are accused whereas a case for the same occurrence was also filed which is Garkha Police Station Case No. 20 of 2005 in which the informant and others have been made accused. On perusal of the said First Information Report, i.e. Garkha Police Station Case No. 19 of 2005, it appears that there is an allegation that Banarasi Manjhi and Mohan Manjhi threw a bomb which injured Shyamdeo Manjhi on his hands and legs and Madan Manjhi on his right hand and legs as well. The case was investigated and finally charge sheet was submitted under Section 307 and 2 other allied sections of the Indian Penal Code. In this context, it may be pointed out that a third case was also instituted by the Officer-in-charge of Garkha Police Station on 30.06.2005 which is Garkha Police Station Case No. 59 of 2005 in which there is specific allegation that the deceased was carrying a bomb which exploded in the scuffle, resulting in his death. As such, the First Information Report was instituted under Section 302 of the Indian Penal Code and the deceased himself was made an accused. Learned Counsel for the petitioner submits that the Court below could not have taken cognizance under Section 302 of the Indian Penal Code by referring to the First Information Report of Garkha Police Station Case No. 59 of 2005, as in Garkha Police Station Case No. 59 of 2005, the petitioner was not made accused. It is said that the Chief Judicial Magistrate has wrongly referred the case for the purposes of taking cognizance under Section 302 of the Indian Penal Code. Learned Counsel for the informant, on the other hand, submits that in the First Information Report, there is specific allegations against few of the accused persons of injuring the deceased and one other by hurling bomb at them. In reply thereto, Counsel for the petitioner submits that during investigation, the Police found that the 3 petitioner was not responsible for throwing the bomb rather the bomb was carried by the deceased had exploded while he was going to attack the petitioner’s side. In view of the aforesaid facts, I find that the Chief Judicial Magistrate, Saran could not have referred to the facts of Garkha Police Station Case No. 59 of 2005 for taking cognizance under Section 302 of the Indian Penal Code in Garkha Police Station Case No. 19 of 2005. If the Chief Judicial Magistrate, Saran wants to defer with the findings of the Investigating Officer, who has submitted the charge sheet under Section 307 of the Indian Penal Code only in the case in question, then he would have to consider the materials in the case diary and record reasons while differing with the findings of the Investigating Officer. In the result, I quash the order dated 02.05.2007 passed in Garkha Police Station Case No. 19 of 2005 and remand the matter to the Chief Judicial Magistrate, Saran to reconsider the entire matter afresh and pass orders in accordance with law. This application is allowed. Anand ( Sheema Ali Khan, J.)