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2012 DIGILAW 650 (PAT)

Raj Kumar Jha @ Raju v. State of Bihar

2012-04-20

RAKESH KUMAR

body2012
ORDER Heard Sri Sanjay Kumar Jha, learned counsel for the petitioners, Sri Shyam Bihari Singh, learned Additional Public Prosecutor, who appears on behalf of opposite party no. 1 / State and Sri Nageshwar Prasad, learned counsel, who has appeared on behalf of informant/opposite party no. 2. 2. Four petitioners, while invoking inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 26.03.2007 passed by the learned Chief Judicial Magistrate, Banka, in G.R. No. 648 of 2005 (arising out of Bounsi P.S. Case No. 59 of 2005), whereby , the learned Magistrate agreeing with the Police report took cognizance of offence under Sections 447, 323, 504/34 of the Indian Penal Code against the petitioners and he has also taken cognizance under Sections 25(1-b)A/26 of the Arms Act differing with the Police report. 3. In the present case it was alleged by the informant that accused persons assaulted informant’s side and in the said occurrence the accused had also taken out certain arms for which F.I.R. vide Bounsi P.S. Case No. 59 of 2005 was registered on 13.06.2005, for the offence under Sections 447, 323, 504, 34 of the Indian Penal Code and Sections 25(1-b)A/26 of the Arms Act. During investigation, it transpired, that the informant with a view to give a colour of seriousness to the offence, himself, had got produced certain arms before the Police, purported to be recovered from the petitioners’ side, and as such, Police, suo motu, registered a separate F.I.R. vide Bounsi P.S. Case No. 01 of 2007 against the informant / opposite party no. 2 for the offence under Sections 25(1-B)A/26 of the Arms Act. However, in respect of offence under Sections 447, 323, 504 & 34 of the Indian Penal Code the Police found allegation as true in Bounsi P.S. Case No. 59 of 2005 and submitted charge sheet against the petitioners under the aforesaid Sections. Since during investigation it was already noticed that the informant of the present case had produced arms with a view to implicate the petitioners under the provisions of the Arms Act, Police submitted final report in respect of the petitioners. Meaning thereby, that the petitioners were not forwarded to face trial for the offence under the provisions of the Arms Act. Meaning thereby, that the petitioners were not forwarded to face trial for the offence under the provisions of the Arms Act. It was submitted by learned counsel for the petitioners that prior to lodging of the present case i.e. Bounsi P.S. Case No. 59 of 2005, on information given by petitioner no. 2 (Suman Kumar Jha) an F.I.R. vide Bounsi P.S. case No. 58 of 2005 was registered on the same date i.e. on 13.06.2005, for the offence under Sections 341, 323, 326, 504, 427, 307/34 of the Indian Penal Code against the informant/opposite party no. 2 and his other associates. In that case also, Police after investigation submitted charge sheet. 4. While assailing the impugned order it was submitted by learned counsel for the petitioners that it is true that the learned Magistrate was competent to pass the order of cognizance differing with the Police report, but for that very purpose, the learned Magistrate was required to assign succinctly reason for differing with the Police report. He submits that in view of the fact that allegation for commission of offence under the provisions of Arms Act was found false and fabricated and Police had indicated those facts in Case Diary, the order of cognizance even under the provisions of the Arms Act makes it clear that the learned Magistrate without application of mind has passed the order in mechanical manner. 5. Sri Nageshwar Prasad, learned counsel appearing on behalf of the opposite party no. 2 has vehemently opposed the prayer of the petitioners. It was submitted that right from the very beginning Police was bent upon to help the accused petitioners, and as such, at belated stage, Police lodged a separate F.I.R. against the informant of the present case for the offence under the provisions of the Arms Act. He further submits that it is entirely within the domain of the Magistrate to pass the order of cognizance, even differing with the Police report, which may not be questioned before this court. 6. Be that as it may, without going into the merit of the case, the court is of the opinion that the learned Magistrate while taking cognizance for the offence under the provisions of the Arms Act has grossly committed error. 6. Be that as it may, without going into the merit of the case, the court is of the opinion that the learned Magistrate while taking cognizance for the offence under the provisions of the Arms Act has grossly committed error. Perusal of the order makes it clear that nothing has been stated as to under what circumstances the learned Magistrate has taken cognizance under Sections 25(1-b)A/26 of the Arms Act, whereas, during investigation, such allegation was found untrue and the petitioners were not forwarded for such offence. Once Police report was submitted exonerating the petitioners under the provisions of the Arms Act, the learned Magistrate while differing with the Police report was required to succinctly assign reason. Perusal of the order indicates that no reason has been assigned, and as such, the order of cognizance so far as Sections 25(1-b)A/26 of the Arms Act is concerned, is hereby set aside and the petition stands partly allowed.