ABHIMANYU PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) 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, (he teamed Magistrate white 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. 3, 5, 11 & 12 of the Case Diary without discussing any fact.