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2012 DIGILAW 368 (PAT)

Abhimanyu Prasad Singh v. State of Bihar

2012-02-29

RAKESH KUMAR

body2012
ORDER Heard Sri Vishwanath Prasad Sinha, learned senior counsel, who was assisted by Sri Yugal Kishore, learned counsel for the petitioner, Smt. Sangeeta Sharma, learned Additional Public Prosecutor and Sri Pranav Kumar, learned counsel, who has appeared on behalf of opposite party no. 2/informant of the case. 2. The sole petitioner, who was at the relevant time Headmaster of Government Middle School, Khajauli, is before this court invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 03.07.2008 passed by the learned Chief Judicial Magistrate, Madhubani, in Trial No. 2451 of 2008 arising out of Khajauli P.S. Case No. 118 of 2007, whereby the learned Magistrate has taken cognizance of offence under Section 409 of the Indian Penal Code against the petitioner and one another. 3. Learned senior counsel for the petitioner while assailing the impugned order submits that F.I.R. was lodged on the written complaint made by the opposite party no. 2/Mukhiya of Gram Panchayat Raj Sarave, which was referred to Police Station for its registration, and thereafter, an F.I.R. vide Khajauli P.S. Case No. 118 of 2007 was registered for the offence under Section 409 of the Indian Penal Code. After registering the F.I.R., Police investigated the case, and during investigation, allegation was found un-true, and as such, on 31.12.2007, Police submitted Final Report exonerating the petitioner. At the same time, the informant of the case also filed a protest petition before the court below, and thereafter, the learned Magistrate by its order dated 03.07.2008 has passed the order of cognizance. It was submitted that the learned Magistrate has committed serious error in passing the order of cognizance in view of the fact that after filing of the Final Report, though the learned Magistrate was empowered to take cognizance differing with the final report, the learned Magistrate was not authorized to examine protest petition. However, in the present case, the learned Magistrate while taking cognizance on the basis of final report had also taken into account the materials mentioned in the protest petition filed by the opposite party no. 2. It was further submitted, that while taking cognizance, differing with the Police report, it was required on the part of the learned Magistrate to succinctly assign reason. No such reason was assigned by the learned Magistrate. The learned Magistrate has simply referred paragraph no. 2. It was further submitted, that while taking cognizance, differing with the Police report, it was required on the part of the learned Magistrate to succinctly assign reason. No such reason was assigned by the learned Magistrate. The learned Magistrate has simply referred paragraph no. 3, 5, 11 & 12 of the Case Diary without discussing any fact. 4. In this case, earlier, Case Diary was called for and same has been received. Learned counsel for the petitioner while referring to paragraph no. 3 submits that it is the re-statement of informant of the case and statement made in paragraph no. 5, 11 & 12 of the Case Diary corroborates innocence of the petitioner, and as such, the learned Magistrate though referred certain paragraphs of the Case Diary in its order had failed to appreciate that the fact mentioned in the Case Diary was not in support of the prosecution. Accordingly, it has been prayed to set aside the order of cognizance. 5. Learned counsel appearing on behalf of the opposite party no. 2 of-course has opposed the prayer of the petitioner but he was not in a position to dispute the fact that statement made in paragraph no. 5, 11 & 12 of the Case Diary does not support the prosecution case. He submits that the informant was a member of the Establishment Committee and without any permission being granted by the Establishment Committee the accused i.e. the petitioner was taking steps for transferring 80 bags of cement to a different place with a view to misappropriate the amount of the cement. 6. Learned Additional Public Prosecutor has supported the stand taken by learned counsel for the opposite party no. 2. 7. Be that as it may, prima facie after going through the impugned order, the court is satisfied, that the learned Magistrate has committed serious error while relying on protest petition filed by the informant as well as on the basis of Police Report i.e. Case Diary. It further appears that the paragraphs which were referred by the learned Magistrate in its order do not support the prosecution case. It is true that a Magistrate after submission of Final Report, exonerating accused person, can take cognizance of offence differing with the final report, but at the same time, while differing, it is required on the part of the Magistrate to succinctly assign reason. It is true that a Magistrate after submission of Final Report, exonerating accused person, can take cognizance of offence differing with the final report, but at the same time, while differing, it is required on the part of the Magistrate to succinctly assign reason. On perusal of the impugned order it is evident that no such reason has been assigned and paragraphs referred in the order do not support the prosecution case. 8. In view of the fact and circumstances, the order impugned is not sustainable in the eye of law. Accordingly, the order dated 03.07.2008 passed by the learned Chief Judicial Magistrate in T.R. No. 2451 of 2008 arising out of Khajauli P.S. Case No. 118 of 2007 so far petitioner is concerned is hereby set aside. 9. The petition stands allowed. ?