NAGESHWAR PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) 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, iearned 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 iearned 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 (Kishori Singh and Others V/s. State of Bihar and Another, 2004 13 SCC 11), (Ram Nandan Singh @ Ram Nandan Yadav V/s. State of Bihar & Anr, 2007 2 PLJR 825) and unreported order passed by a Division Bench of this Court in Cr. Misc. No. 15552 of 2007 (Kusheshwar Singh & Another V/s. 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 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 . 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. However, at the time of argument, Shri Madan Mohan Prasad, earned 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 Sec. 190(1)(b) of the Code of Criminal Procedure even differing with the police report.