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2006 DIGILAW 98 (PAT)

Sanjay Yadav v. State Of Bihar

2006-01-25

CHANDRAMAULI KR.PRASAD

body2006
Judgment 1. This application has been filed for quashing the order dated 15.1.2003 passed by the Additional Chief Judicial Magistrate, Danapur in Bihta P.S. Case No. 59 of 2002, whereby he had disagreed with the conclusion of the Investigating Officer, took cognizance of the offence and directed for issuance of process against the petitioners. 2. On the basis of a report given to the police, Bihta P.S. Case No. 59 of 2002 was registered under Sections 147, 148, 149, 307, 302 and 120-B of the Indian Penal Code against the petitioners besides other accused persons. The police, after investigation, had submitted charge-sheet under Section 302/34 of the Indian Penal Code and 27 of the Arms Act against two persons and rest of the accused persons named in the first information report including the petitioners were not sent up for trial. The final form submitted by the Investigating Officer was placed for consideration before the Additional Chief Judicial Magistrate and by order dated 14.11.2002, he directed the Investigating Officer to further investigate the case and record the statements of some of the witnesses named in the said order which according to the protest petition filed by the informant, were not being examined by the Investigating Officer. The statement of those witnesses were recorded and submitted before the learned Magistrate. The learned Magistrate taking into account the material collected during the course of investigation, differed with the conclusion of the Investigating Officer, took cognizance of the offence and directed for issuance of process against the petitioners. 3. Mr. Manoj Kumar, appearing on behalf of the petitioners, submits that the order passed by the learned Magistrate to record the statement of the witnesses amounts to interfering with the investigation and he having considered the statement of witnesses so recorded while disagreeing with the conclusion of the Investigating Officer, vitiates his order. I do not find any substance in the submission of Mr. Kumar. 4. It is well settled that the learned Magistrate, while considering the final form, is not bound to accept the conclusion of the Investigating Officer and one of the options to him is to direct for further investigation. Merely, the fact that he had directed for recording the statements of some of the witnesses, in my opinion, shall not amount to interfering with the investigation by the police. 5. Mr. Merely, the fact that he had directed for recording the statements of some of the witnesses, in my opinion, shall not amount to interfering with the investigation by the police. 5. Mr. Kumar, then submits that the police having submitted final report, the learned Magistrate had no jurisdiction to differ with the same, take cognizance of the offence and direct for issuance of process against such persons. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Kishori Singh and others v. The State of Bihar and others, 2000 (3) East Cr C 816 (SC) : 2001 Cr LJ 123. I do not find any substance in this submission of the learned Counsel. 6. I had the occasion to consider the judgment of the Supreme Court in the case of Kishori Singh [supra] in 2002 (1) East Cr C 509 (Pat) : 2002 (1) PLJR 318 Hori Sao and others v. The State of Bihar and others in which in have held as follows : "17. For the reasons stated above, I do not have slightest doubt in mind that the learned Magistrate while exercising its power under Section 190 of the Code is not bound by the conclusion arrived at by the officer incharge of the police station in a case exclusively triable by Court of Sessions while submitting the report under Section 173 of the Code and in a case in which the materials collected during the course of investigation and forming part of the report under Section 173 Cr PC prima facie, suggest complicity of the accused persons in the crime although named in the FIR but not charge-sheeted, still the Magistrate can differ with the conclusion and take cognizance of the offence. The Magistrate has such power under Section 190 of the Code. I hasten to add that although the police is master of investigation but what treatment has to be given to the report is in the domain of the Magistrate." 7. I do not find any merit in the application and it is dismissed accordingly.