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2010 DIGILAW 2434 (PAT)

Vijay Kumar Singh v. State Of Bihar

2010-11-04

RAKESH KUMAR

body2010
JUDGEMENT 1. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 17.12.2003 passed by learned Chief Judicial Magistrate, Samastipur in Samastipur (Mufassil) P.S.Case No.416 of 1997. By the said order, learned Magistrate, differing with the police report, has taken cognizance of offences under Sections 420, 384/34 of the Indian Penal Code against the petitioner and some of the accused, who were named in the F.I.R. 2. Short fact of the case is that on a written report of Block Development Officer, Samastipur, an F.I.R. was lodged vide Samastipur (Mufassil) P.S. Case No.416 of 1997 on 24.11.1997 against five accused persons including the petitioner. It was alleged that the informant had noticed during an enquiry that many irregularities were committed during the construction of house under the scheme of Indira Aawas Yojna. In the F.I.R., it was discussed that one of the named accused Ram Binod Paswan had disclosed during the enquiry before the informant that this petitioner was also one of the persons, who was extracting money from beneficiaries and also doing contract work. On the basis of aforesaid allegation, F.I.R. was registered. Thereafter, it was thoroughly investigated by the police. During investigation, it was found that petitioner and one Shambhu Paswan, who were F.I.R. named accused persons, had committed no offence and, accordingly, while submitting charge sheet against three accused persons including one of the Junior Engineer, the petitioner and one accused were exonerated by the investigating agency. After submission of the final report, by order dated 17.12.2003, the learned Chief Judicial Magistrate, firstly exonerated one of the main accused, namely, Manohar Kumar Sinha, Junior Engineer and differing with the police report, has taken cognizance of the offence against some of the accused persons including the petitioner. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. 4. Shri Om Prakash Upadhyaya, learned counsel appearing on behalf of the petitioner, while challenging the impugned order of cognizance, submits that even in the F.I.R., the petitioners name had surfaced on the basis of statement of one of the co- accused. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. 4. Shri Om Prakash Upadhyaya, learned counsel appearing on behalf of the petitioner, while challenging the impugned order of cognizance, submits that even in the F.I.R., the petitioners name had surfaced on the basis of statement of one of the co- accused. Learned counsel has specifically referred to the contents of the F.I.R. It has been submitted that during investigation, the police found that the petitioner was not at all involved in the crime and as such police submitted final form. It has further been submitted that the learned Magistrate, differing with the police report without any material in the case diary, has taken cognizance of the offence even against the petitioner. It was pointed out by referring to the impugned order that the learned Magistrate, while taking cognizance, has completely relied on the averment made in the F.I.R., the learned Magistrate has not at all whispered about any material collected during the investigation showing involvement of the petitioner. It was submitted that it is true that while taking cognizance, a Magistrate can take cognizance of the offence differing with the police report, but at the same time, it is required that while differing the learned Magistrate must assign some reasons. It was submitted that in the impugned order, no such cogent reason was pending by the learned Magistrate and, accordingly, the order of cognizance is liable to be set aside. 5. I have also heard Shri Nand Kishore Prasad, learned Additional Public Prosecutor appearing on behalf of the State, who has vehemently opposed the prayer of the petitioner. He has specifically submitted that in the F.I.R. itself, there are materials showing involvement of the petitioner and as such the learned Magistrate, while taking cognizance, has committed no error. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. After going through the F.I.R., it is not in dispute that petitioners name had transpired on the basis of statement made by one of the co- accused. Of course, there is no specific allegation against the petitioner even in the F.I.R., from the impugned order, it appears that the learned Magistrate, only on the basis of F.I.R., has taken cognizance of the offence. The learned Magistrate has not bothered to discuss any material from the case diary. Of course, there is no specific allegation against the petitioner even in the F.I.R., from the impugned order, it appears that the learned Magistrate, only on the basis of F.I.R., has taken cognizance of the offence. The learned Magistrate has not bothered to discuss any material from the case diary. At the time of differing with the police report, it was necessary for the learned Magistrate to give some reasons. The reason, which has been purported to be assigned by the learned Magistrate i.e. material in the F.I.R., is not sufficient for differing with the police report. Accordingly, the court is of the opinion that the learned Magistrate has committed serious error in proceeding against the petitioner. 7. Accordingly, the order dated 17.12.2003 passed by the learned Chief Judicial Magistrate, Samastipur in Samastipur (Mufassil) RS. Case No.416 of 1997, so far as this petitioner is concerned, is hereby set aside and petition stands allowed.