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2008 DIGILAW 74 (PAT)

Sanjay Singh v. State Of Bihar

2008-01-14

SADANAND MUKHERJEE

body2008
Judgment Sadanand Mukherjee, J. 1. This is an application for quashing the order dated 23.7.2007 passed by the Addl. Chief Judicial Magistrate, Saran at Chapra ir U.T. 304 of 2007, arising out of Sonepur P.S. Case No. 14 of 2004, by which he has taken cognizance of offence under Sections 147, 143, 149, 341, 324, 307, 435, 436, 427 of the I.P.C. and Sec. 27 of the Arms Act against the petitioners. 2. The prosecution case is that on 19.2.2004 in the morning the informant saw a tractor loaded with sand at the Hariharnath Chowk and asked the driver for the tall of sand lifting on which the driver went to call his employer. After some time several persons along with the petitioners and others came variously armed and assaulted him. After some time the named persons in the F.I.R. including the petitioners along with 200-250 persons came to the house of Sadhu Yadav and started firing. The informant and others also fired in retaliation. The mob set fire and took away Rs. 40,000/- and a licencee revolver from the house of brother of informant. 3. It is submitted that this case is the counter blast of the Sonepur P.S. Case No. 15 of 2004 dated 19.2.2004 lodged by Sudhir Kumar Singh for the offence under Sections 147, 148, 149, 324, 341, 307 of the Penal Code and Sec. 27 of Arms Act against Sadhu Yadav informant and others alleging therein that on 19.2.2004 at 9 a.m. when the informant was going to Hajipur on his motor cycle Sadhu Yadav and his men intercepted the informant and two other boys and took them on his Baithaka near the factory, when the informant and others made hulla, persons assembled there and seeing the mob Sadhu Yadav and his men started indiscriminate firing as a result of which informant received injury on his right hand and pramod Kumar Singh sustained injury on his right shoulder and one more person who was going on his cycle sustained firearm injury. 4. During the course of investigation the informant Madhusudan Yadav filed an application before the police that the theft of revolver and cash of Rs. 40,000/- was not correct as those were found lying in the room of Sadhu Yadav itself. 4. During the course of investigation the informant Madhusudan Yadav filed an application before the police that the theft of revolver and cash of Rs. 40,000/- was not correct as those were found lying in the room of Sadhu Yadav itself. Thereafter both the informant and the accused persons compromised both the cases and a compromise petition, Annexure-4, indicates that the informant has filed a compromise petition stating that he does not want to prosecute with the case. No specific allegation of overt act has been attributed against the petitioners and the fathers name of the petitioners is a also not correct in the F.I.R. The Investigating Officer found the case doubtful, gave direction that no coercive steps shall be taken against the petitioners. After completion of investigation the police submitted charge-sheet against only Subodh Singh and lack of evidence against the petitioners. 5. It appears that the learned C.J.M. vide order dated 23.7.2007 took cognizance of the offence against the named accused persons including the petitioners and some other accused persons except Awadhesh Singh under Sections 147, 148, 149, 341, 324, 307, 435, 436, 427 of the I.P.C. and Sec. 27 of the Arms Act. 6. It has been submitted on behalf of the petitioners that the order of the court below does not show as to how the learned court below has distinguished the case of Awadhesh Singh with other accused persons since allegations are similar against all in the first information report. It is further submitted that there is non-application of mind by the learned Additional Chief Judicial Magistrate. 7. With reference to the settled principle of law it is submitted that while differing with the police report where there is no protest, the learned Magistrate shall assign reason for differing with the same, hence the order is bad in law. In this connection learned Counsel for the petitioner placed reliance of A.I.R. 1955 SC 196. On behalf of the prosecution it is submitted that the final report submitted by the police is not binding on the Magistrate and the Magistrate may take cognizance in spite of it. In this connection learned Counsel for the petitioner placed reliance of A.I.R. 1955 SC 196. On behalf of the prosecution it is submitted that the final report submitted by the police is not binding on the Magistrate and the Magistrate may take cognizance in spite of it. Thus, with reference to settled principle of law, it has been submitted that the Magistrate should not reject the opinion of the Investigating Officer in the mechanical manner and may take cognizance in this regard and form opinion after lawful exercise undertaken under Chapter XII of the Cr.P.C. In this case compromise has also filed. 8. In the order taking cognizance of the offence against the petitioners sufficient material for the Magistrate to differ from the opinion framed by the Investigating Officer has not been shown. In this connection learned Counsel for the petitioners cited 2007 (2) P.L.J.R. 150 in which a Bench of this Court in similar circumstances quashed the order of cognizance as the concerned Magistrate had not given reasons for differing with the opinion of the Investigating agency. 9. It is submitted with reference to the case diary that in no case the offence alleged is made out against the petitioners. In this connection learned Counsel for the petitioners also placed reliance of 2007 (2) P.L.J.R. 525 . Besides that there is also compromise between the parties and there is case and counter case in which in view of the compromise the informant party did not want to proceed with the case. Accordingly the order of cognizance dated 23.7.2007 passed in U.T. 304/07, arising out of Sonepur P.S. Case No. 14 of 2004 is quashed and the applications is allowed so far so as these petitioners are concerned.