IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36819 of 2005 1. SUBHAS GUPTA, SON OF RAMESHWAR GUPTA. 2. ARUN GUPTA, SON OF DWARKA PD. GUPTA. 3. ANIL GUPTA @ ANIL KUMAR, SON OF DWARKA PRASAD GUPTA. ALL OF RESIDENT-PIPRA, P.S. PIPARA, DISTRICT-EAST CHAMPARAN MOTIHARI…………………………………………………………PETITIONERS. Versus THE STATE OF BIHAR………………………………………OPPOSITE PARTY. ----------- With Cr.Misc. No.41953 of 2006 1. SHANKAR SINGH, SON OF LATE BINDHYACHAL SINGH. 2. DIWAKAR PANDEY. 3. PRABHAKAR PANDEY. BOTH SONS OF YOGENDRA PANDEY. 4. YOGENDRA PANDEY, SON OF LATE LAXMAN PANDEY. ALL OF RESIDENT PIPARA, P.S. PIPARA, DISTRICT-EAST CHAMPARAN. ……………………………………………………………………….PETITIONERS. Versus THE STATE OF BIHAR……………………………………..OPPOSITE PARTY. ----------- For the Petitioners in both cases : M/s. Yogesh Chandra Verma, Senior Advocate, Akhilesh Kumar Pandey and Naresh Dass, Advocates. For the State in both cases : Mr. Jharkhandi Upadhyay, A.P.P. ------------ O R D E R Both these cases have been taken up together as they arise out of the same Pipara P.S. Case No.65 of 1992 and having been heard together they are being disposed of by this common order. Subhas Gupta, Arun Gupta and Anil Gupta alias Anil Kumar are the petitioners of Criminal Misc. No.36819 of 2005 and - 2 - Shankar Singh, Diwakar Pandey, Prabhakar Pandey and Yogendra Pandey are the petitioners of Criminal Misc. No.41953 of 2006 and all of them figure as accused in Pipara P.S. Case No.65 of 1992 registered under Sections 302, 324, 435 and other allied Sections of the Penal Code on the basis of the fardbeyan given by one Meena Devi, the wife of deceased Lal Babu Thakur at 9 P.M. on 3.11.1992. It appears that after due investigation the police submitted chargesheet only against nine persons and had not sent up for trial the petitioners of both these cases. However, the learned Chief Judicial Magistrate, East Champaran at Motihari, after perusal of the F.I.R., case diary and chargesheet took cognizance against all the 17 accused, named in the F.I.R., including the petitioners of both these cases by his order dated 13.2.2003 differing from the chargesheet submitted by the police. The petitioners of both these cases have prayed for the quashing of the said order dated 13.2.2003 passed by the learned Chief Judicial Magistrate, East Champaran at Motihari. The factum of death of Lal Babu Thakur, is not in dispute and the defence has not raised any objection regarding the factum of death. Whereas the prosecution claimed that the deceased had been killed by the F.I.R. named accused, according to the defence Lal Babu Thakur was a veteran criminal and had been killed by the mob. It is by now well settled that the cognizance is taken of the offences and not as against the offender. Cognizance does not mean the commencement of a proceeding against any one. Taking - 3 - cognizance ordinarily means that the Magistrate has come to the conclusion that there is a case to be inquired into. It is also well established law that the Magistrate is not bound by the report submitted by the police under Section 173(2) Cr.P.C. after investigation and he may take cognizance even against those persons named as accused in the fardbeyan but against whom a chargesheet is not submitted. As held in Raghubansh Dubey’s case(AIR 1967 SC 1167) and Hareram’s case(AIR 1978 SC 1568), the Apex Court was of the view that even when the police does not file chargesheet against all the persons alleged to have committed offence, the Magistrate has power to summon other persons, not mentioned in the report. Then again in India Caret Private Limited Vs. State (AIR 1989 SC 885), the Apex Court reiterated that the Magistrate may take cognizance irrespective of the view taken by the police. I have had the occasion to hear the submissions advanced by both parties and on perusal of the case diary, I am of the opinion that the court below has rightly taken cognizance of the offences. I find no illegality in the impugned order under challenge. Accordingly, as the impugned order is found to be justified, both the applications filed by the petitioners are hereby dismissed. However, the petitioners, if so advised, may raise all these points, as have been raised in these applications, at the stage of framing of the charge and in the event such issues are raised, the learned trial court without being prejudiced by this order notwithstanding the dismissal - 4 - of these applications will pass orders in accordance with law. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 20th of May, 2009. Pradeep Srivastava/A.F.R.