ORDER Heard Shri Madan Mohan Prasad, who was assisted by Shri Anurag Pandey, learned counsel for the petitioners, Shri Hirday Prasad Singh, learned Additional Public Prosecutor as well as Shri Rakesh Kumar Tiwary, learned counsel, who has voluntarily appeared on behalf of the informant of the present case by filing vakalatnama. 2. Three 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 2.4.2007 passed by learned Chief Judicial Magistrate, Samastipur in Patory P.S. Case No.14 of 2004 (G.R. Case No.213 of 2004) registered for the offence under Sections 364 and 364(A) of the Indian Penal Code, whereby the learned Magistrate, differing with the police report, has directed for issuance of processes for securing attendance of the accused/petitioners. 3. Learned counsel for the petitioners, while assailing the impugned order, has firstly argued that the learned Magistrate was having no power or jurisdiction to take cognizance in a case in which police had submitted final report exonerating the accused persons. In support of his argument, he has heavily relied on 2004(13) SCC 11 (Kishori Singh and others Vs. State of Bihar and another), 2007(2) PLJR 825 (Ram Nandan Singh @ Ram Nandan Yadav Vs. State of Bihar & Anr.) and unreported order passed by a Division Bench of this Court in Cr. Misc. No.15552 of 2007 (Kusheshwar Singh & another Vs. The State of Bihar & another). He empathetically argued that almost similar point was decided by a single Bench of this Court in Ram Nandan Singh’s case (Supra) and subsequently, in another case, since Single Bench has referred the matter to a Division Bench of this Court recently on 17.5.2011, the Division Bench of this Court in Cr. Misc. No.15552 of 2007 has approved the order of Ram Nandan Singh’s case(Supra). He has alternatively argued that the present F.I.R. was lodged maliciously and due to land dispute. Moreover, during investigation, no material was collected and as such police had submitted final report. He submits that in absence of any material showing involvement of the petitioners, the learned Magistrate was not competent to take cognizance of the offence and direct for issuance of processes against the petitioners. He submits that in the entire case diary, there is no material even to suggest involvement of the petitioners. He submits that in absence of any material showing involvement of the petitioners, the learned Magistrate was not competent to take cognizance of the offence and direct for issuance of processes against the petitioners. He submits that in the entire case diary, there is no material even to suggest involvement of the petitioners. However, at the time of argument, Shri Madan Mohan Prasad, learned counsel for the petitioners admits that a Magistrate can take cognizance differing with the police report, if there is material in the case diary. Since learned counsel for the petitioners himself accepts the proposition of law regarding taking cognizance of offence by the Magistrate differing with the police report, it would not be appropriate to take the issue in detail, but it would be appropriate to refer law laid down by this Court as well as apex court on the point that a Magistrate is well empowered to take cognizance of offence under Section 190(1)(b) of the Code of Criminal Procedure even differing with the police report. 4. In this context, it would be appropriate to refer AIR 1968 Supreme Court 117 (Abhinandan Jha and others Vs. Dinesh Mishra), 1989(2) SCC 132 (M/s India Carat Pvt. Ltd. Vs. State of Karnataka and another) and 2001(6) SCC 670 (Swil Ltd. Vs. State of Delhi and another). It would be appropriate at this stage to quote paragraph-16 of M/s India Carat Pvt. Ltd., which is as follows : “16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.” 5. The said proposition was reiterated in Swil Ltd.’s (Supra). It would be relevant to quote paragraph-6 of the aforesaid judgment : “6. In our view, from the facts stated above, it is clear that at the stage of taking cognizance of the offence, provisions of Section 190 CrPC would be applicable. Section 190 inter alia provides that “the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence”. As per this provision, the Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under Section 204 CrPC is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with charge-sheet. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with charge-sheet. Further, upon receipt of police report under Section 173(2) CrPC, the Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At this stage, there is no question of application of Section 319 CrPC. Similar contention was negatived by this Court in Raghubans Dubey v. State of Bihar by holding thus: (AIR p.1169, para 9) “in our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.” 6. Besides this, Section 191(1)(b) of the Code of Criminal Procedure makes it clear that a Magistrate is well competent to take cognizance of offences on a police report, if the facts discloses commission of offences. The provision contained in Section 191(1)(b) of the Code of Criminal Procedure has been discussed in aforesaid cases and as such it is necessary to elaborate the aforesaid facts. Besides this, learned counsel for the petitioners himself has admitted that the learned Magistrate is competent to take cognizance of offence differing with the police report, if there is material in the case diary. 7. On the question of fact, learned counsel appearing on behalf of the informant has placed paragraph-30 of the case diary. Besides this, learned counsel for the petitioners himself has admitted that the learned Magistrate is competent to take cognizance of offence differing with the police report, if there is material in the case diary. 7. On the question of fact, learned counsel appearing on behalf of the informant has placed paragraph-30 of the case diary. Of course, at the time of hearing a petition under Section 482 of the Code of Criminal Procedure, it was not at all required but on insistence of learned counsel for the petitioners, this Court had allowed learned counsel for opposite party no.2 to refer relevant paragraph i.e. paragraph-30 of the case diary. Paragraph-30 of the case diary indicates that after recovery, statement of victim was got recorded in which statement he had made categorically statement that all the three persons were involved in kidnapping the victim. Besides this, the learned Magistrate, while passing order of cognizance, had also perused the case diary and referred certain paragraphs of the case diary. In this case, order of cognizance was assailed by the petitioners before the revisional court and revisional court also discussing each and every fact and material on record has dismissed the Cr. Revision i.e. Cr. Revision No.73 of 2008 by its order dated 16.6.2009. In normal course, after rejection of revision petition, a petition under Section 482 of the Code of Criminal Procedure is not required to be entertained on the simple reason that Section 97(3) of the Code of Criminal Procedure put a restriction for maintaining second revision. First revision, which was preferred by the petitioners, was rejected by the learned Sessions Judge. Thereafter, a petition filed in the garb of Section 482 of the Code of Criminal Procedure amounts to second revision, which is not permissible. 8. However, in view of the facts and circumstances as well as law discussed above, I do not find any material to interfere with either of the orders and as such petition stands dismissed. 9. In this case, order of cognizance was passed long back in the year 2007 and occurrence had taken place in the year 2004 and as such it is desirable to direct the court below to proceed with the case expeditiously so that it may come to its logical end without un-necessary delay. 10. The petition stands dismissed.