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2013 DIGILAW 1302 (PAT)

Kanchan Kumari v. State of Bihar

2013-11-18

BIRENDRA PRASAD VERMA

body2013
ORDER Heard the parties. 2. The petitioners are aggrieved by the order dated 08.09.2011 passed in Trial No. 4089 of 2011, arising out of Parasi P.S. Case No. 1 of 2011 by the learned Chief Judicial Magistrate, Jehanabad, whereby in disagreement with the police report cognizance has been taken for offences under Sections 420, 467, 468, 471/34 of the Indian Penal Code and summonses have been ordered to be issued to the accused petitioners for facing trial and further the case has been transferred to the court of learned Judicial Magistrate, 1st Class, Jehanabad for trial and disposal. 3. It is not in dispute that FIR vide Annexure-1 was lodged for the offences under Sections 420, 467, 468, 471/34 of the Indian Penal Code. In the aforesaid FIR both the petitioners are named as accused persons. It is also not in dispute that the case was thoroughly investigated by the police, but during the course of investigation, independent witnesses did not support the prosecution case, as a result thereof final report dated 28.07.2011 (Annexure-2) was submitted and the petitioners were not charge sheeted. However, the learned Chief Judicial Magistrate in disagreement with the police report, has taken cognizance for offences under Sections 420, 467, 468, 471/34 IPC by the impugned order dated 08.09.2011. 4. Learned counsel appearing on behalf of the petitioners has raised a very short question. It is submitted that it is true that the learned Magistrate was empowered to disagree with the police report for the purpose of taking cognizance, but while doing so he was required to record reasons for such disagreement, and only thereafter he could have taken cognizance and ordered for issuance of summons against the accused persons, but that has not been done in the present case. 5. Learned Additional Public Prosecutor appearing on behalf of the State of Bihar, though has opposed the prayer made on behalf of the petitioners, but has fairly conceded that the reasons have not been recorded by the learned Chief Judicial Magistrate while passing the impugned order taking cognizance. 6. After having heard the parties and on consideration of the materials available on record, this Court is of the opinion that the impugned order dated 08.09.2011 passed by the learned Chief Judicial Magistrate, Jehanabad cannot be sustained. 6. After having heard the parties and on consideration of the materials available on record, this Court is of the opinion that the impugned order dated 08.09.2011 passed by the learned Chief Judicial Magistrate, Jehanabad cannot be sustained. Once the police has submitted the final report vide Annexure-2 and once it has come to a finding that accusations against the petitioners were found to have not been substantiated by the independent witnesses, then the learned Chief Judicial Magistrate could not have compelled the police to change its opinion and could have disagreed with the police report for the purpose of taking cognizance, but while doing so he was required to record reasons for such disagreement in view of the law laid down by the Hon’ble Apex Court in the case of Union of India Vs. Prafulla Kumar Samal [ AIR 1979 SC 366 = 1979 Cr.L.J. 154]. Apparently, the requirement of law has not been followed by the learned Chief Judicial Magistrate while passing the impugned order. Therefore, the impugned order cannot be sustained in law. 7. For the reasons recorded above, the impugned order dated 08.09.2011 passed in Trial No. 4089 of 2011 arising out of Parasi P.S.Case No. 1 of 2011 by the learned Chief Judicial Magistrate, Jehanabad, is hereby quashed and set aside and the matter is remitted back to him for passing a fresh order strictly in accordance with law. 8. The application stands allowed to the extent indicated above. 9. It goes without saying that the order of stay dated 03.04.2012 passed by a Bench of this Court has merged in the present order.