IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.770 of 2009
Ramdeo Yadav son of Parsadi Yadav, resident of
village Babhnauli, P. S. Nardiganj, District-
Nawadah.
.... Petitioner.
1. The State of Bihar
2. Azad Yadav son of Ravran Yadav, resident of
village Babhnauli, P. S. Nardiganj, District-
Nawadah.
... Opp. Parties.
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For the petitioner :Mr. Durgesh Nandan, Adv.
For the State : Mrs. Indu Bala Pandey, APP.
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PRESENT
Hon'ble Mr. Justice Amaresh Kumar Lal
O R D E R
( 11.08.2011)
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Amaresh Kumar Lal, J. The informant-petitioner has
preferred this revision application against
the order dated 26th June 2008 passed by the
learned Chief Judicial Magistrate, Nawada by
which the cognizance has been taken in
Nardiganj P. S. Case No. 28 of 2007 for
offence punishable under Section 302 I.P. C.
and 27 of the Arms Act against an accused
Bhushan Chauhan and no cognizance has been
taken against co-accused Azad Yadav.
2. According to the informant-
petitioner, he gave his fard beyan to the
office-in-charge, Nardiganj Police Station on
13.5.2007 at 8.15 P. M. alleging that on the
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same day at 7.15 a.m. while he was ploughing
his field, cattle graziers raised alarm that
Kailu Yadav was shot by the accused- Bhushan
Chauhan. Thereafter, the informant went to the
place of occurrence and saw that his brother,
Kailu Yadav was lying dead and blood was
oozing from his person. Son of the informant,
Bali Yadav and his nephew Pandit Jee and
several persons told the informant that
Bhushan Chauhan shot the deceased dead. The
reason for the occurrence is the contract of
constructing road. Bhushan Chauhan had taken
soil from the wheat field of the informant for
which on 12.5.2007 Kailu Yadav had altercation
with Bhushan Yadav, who had threatened him to
kill.
3. The contention of learned
counsel for the petitioner is that fard beyan
of the informant was not correctly mentioned
by the police officer and he filed a protest
petition dated 17.5.2007 in the Court of
learned Chief Judicial Magistrate stating
therein that on the date and time of the
occurrence the deceased was returning after
getting grinded the gram and in the way
accused Bhushan Chauhan and Azad Yadav had
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made altercation with the deceased. During
that altercation, Azad Yadav instigated co-
accused Bhushan Chauhan to kill the deceased
and, thereafter, Bhushan Chauhan shot fire at
Kailu Yadav causing his death. Informant as
well as other cattle graziers Bali Yadav son
of Ramdeo Yadav and Pandit Jee, son of Lakhan
Yadav saw giving shot to the deceased and both
of them running away from the place of
occurrence.
4. It is further contended that
again the petitioner filed another protest
petition dated 14th September 2007 in the
Court of learned Chief Judicial Magistrate
that Kailu Yadav was murdered by accused
Bhushan Chauhan and Azad Yadav, opposite party
no. 2. Again the petitioner has filed the
protest petition dated 26.10.2007.
5. After investigation, the police
submitted charge-sheet against the accused,
Bhushan Chauhan for the offence punishable
under Section 302 I.P. C. and 27 of Arms Act
and the complicity of the co-accused Azad
Yadav was not found. Thereafter, the
cognizance has been taken against accused
Bhushan Chauhan only by the learned Chief
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Judicial Magistrate vide impugned order dated
26.6.2008
6. The main contention of learned
counsel for the petitioner is that the protest
petition and the other materials were before
the learned Chief Judicial Magistrate and he
ought to have taken cognizance against accused
Azad Yadav, opposite party no. 2. He has
further contended that after receipt of the
charge-sheet, learned Magistrate has three
options. He may agree with the final report
and accept it and close the proceeding or he
may give direction to the police to make
further investigation or he may take
cognizance of the offence if in its opinion
the facts set out in the final form constitute
an offence notwithstanding contrary conclusion
of the Investigating Officer. It cannot be
said that the Magistrate cannot disagree with
the report while exercising its power under
Section 190 Cr.P.C.. In support of his
contention, he has relied upon decisions of
this Court in the case of Ashok Yadav & Anr.
Vs. State of Bihar, reported in 2006(1) PLJR
204 and in the case of Nathun Yadav & Anr. Vs.
State of Bihar, reported in 2001(4) PLJR 754.
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7. On the other hand, the contention of learned counsel for opposite
party is that opposite party no. 2 was not
named in the FIR and the petitions filed by
the informant-petitioner do not amount to
protest petition as it appears from the
petitions filed by the informant. He has
further submitted that there is no material on
record to show the complicity of the opposite
party no. 2 in the alleged offence, as such
the learned Magistrate has not taken
cognizance against him.
8. After hearing learned counsel
for both the parties and on perusal of the
material on record it appears that FIR was
lodged against the accused Bhushan Chauhan
only for the occurrence took place on
13.5.2007. When the informant-petitioner came
to know that the name of co-accused has not
been mentioned in the fard beyan, he filed a
protest petition in the Court of learned Chief
Judicial Magistrate at the earliest on
17.5.2007. Again he filed petition in the
Court of learned Chief Judicial Magistrate on
14.9.2007 and again on 26.10.2007. From
reading of all these three petitions it
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appears that protest was made against the
police and allegations were made against
opposite party no. 2. After investigation the
police has submitted charge-sheet against co-
accused Bhushan Chauhan and the complicity of
accused Azad Yadav has not been found. It was
open to the learned Chief Judicial Magistrate
to take recourse to three options. He may
agree with the final report and accept it and
close the proceeding or he may give direction
to the police to make further investigation or
he may take cognizance of the offence if in
its opinion the facts set out in the final
form constitute an offence notwithstanding
contrary conclusion of the Investigation
Officer. It cannot be said that the Magistrate
cannot disagree with the report while
exercising its power under Section 190 of
Cr.P.C. as it has been held in the decision
reported in 2006(1) PLJR 204 (supra). The
petitioner has no grievance against the order
taking cognizance against co-accused Bhushan
Chauhan. He has only grievance that learned
Magistrate should have differed with the
finding of the Investigating Officer and
should have taken cognizance against opposite
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party no. 2 against whom there is material to
show his complicity in the alleged offence.
9. Considering the facts and
circumstances stated above, learned Magistrate
is directed to consider the material available
on record for considering the facts whether
there is material against accused, opposite
party no. 2. The Hon’ble Supreme court in the
case of Raghubans Dubey vs. State of Bihar,
reported in AIR 1967 page 1167 has held that
once the Magistrate takes cognizance, 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
there are material against the other accused
persons for issuance of summons, he can summon
the accused. The summoning of the additional
accused is part of the proceeding initiated by
his taking cognizance of offence.
10. With the aforesaid observation
and direction, this application stands
disposed of.
Patna High Court (Amaresh Kumar Lal, J.)
Dated 11th of August 2011
N.A.F.R/Kanchan