BIRENDRA YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 23.2.2001 passed by the Chief Judicial Magistrate, Gopalganj in G.R. No. 1477 of 2000 in (Kuchailote PS. Case No. 103 of 2000) by which he had refused to take cognizance of the offence against opposite party Nos. 2 to 4 inspite of sufficient materials available on the record against them and had accepted the final form submitted by the police excluding their names.

(2.) THE case was started on the basis of the Fardbeyan of the Chaukidar recorded against unknown alleging therein that while at 8.30 A.M. the Chaukidar heard the sound of a gun fire and an alarm was raised that murder had taken place. The Chaukidar moved towards the place from where the sound was coming. On the way he found a person lying on the road in a pool of blood. He could learn that two persons were coming on a Hero Honda Motor Cycle from Gopalganj side and three other persons on a Bullet motor cycle were chasing those two. In the process the person sitting on the back seat of the Bullet motor cycle opened fire on the person sitting behind on Hero Honda Motor Cycle.

(3.) IT has been contended that it is well settled that according to law the Magistrate has to take cognizance on the basis of ther materials available on record but he is not bound in any way by the finding of the police. The Magistrate has got the ultimate control over the police investigation. Even if the police reports that no case is made out against any person the Magistrate has got full authority under law to proceed against him ignoring the conclusions arrived at by the police. The decision relied upon in the impugned order, namely, Kishori Singh and Ors. V/s. State of Bihar and Anr. 2001 Cri. L.J. 123 (SC) does not apply (sic) facts of the present case. On the strength of this decision it can not be concluded that in a session case the Magistrate has got no authority under law to proceed against those persons against whom no charge sheet has been submitted. The stage of Section 319 of the Code does not come at the cognizance taking stage. On these grounds it has been prayed that the impugned order be quashed and necessary order may be passed which may be deemed to be fit and proper.