Patna High Court - OrdersRajendra Singh @ Rajendra Prasad Singh vs State Of Bihar on 30 June, 2008IN THE HIGH COURT OF JUDICATURE AT PATNA
              Cr.Misc. No.7863 of 2007
 RAJENDRA SINGH @ RAJENDRA PRASAD SINGH
                       Versus
                 STATE OF BIHAR

                        -----------

For the petitioner : M/S Ajay Thakur and
                      Amit Kumar, Advocates.
For the State : Mr. Mukesh Kumar Singh, A.P.P.
For Opp.Party no.2: None
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                        ORDER




           The petitioner , one of the accused of Noorsarai P.S. Case

 no.172 of 2005, through this application underSection-482Cr.P.C.

 seeks quashing of order dated 21.8.2006 passed by the learned Chief

 Judicial Magistrate, Nalanda     at Biharsharif   whereby he has been

 pleased to differ with the final form submitted by the police and has

 taken cognizance under Sections-420,406,409, 120BI.P.C.

           At the very outset, it may be stated that although notice was

 directly served on the informant, Subodh Singh, impleaded as Opp.Party

 no.2 herein, yet curiously he has chosen not to appear and contest this

 application.

           In short , the prosecution case is that Swablambi Dugdh

 Utpad Sahkari Sahyog Samittee Ltd. was established on 2.8.2002,

 bearing Registration No.B.R. 010201M.259/2000. It is stated that the

 informant was elected as the Chairman of the said Samittee on

 22.1.2005.On 13.7.2005 a sum of Rs.48,000/- was illegally withdrawn

 by Rajendra Prasad Singh and Vijay Yadav, two members-2-of the Samittee from the account of the Samittee , bearing Account

no.3791 in connivance with the Branch Manager of the Bank, specially

when the Account was to be operated jointly by the Chairman of the

Samittee and its Secretary , Rajendra Prasad Singh.The Complaint filed by the Complainant was sent to the

police underSection-156(3)Cr.P.C. on the basis whereof the instant

Noorsarai Police Station Case came to be registered. It transpires that

the police after due investigation submitted a final form, but the learned

Chief Judicial Magistrate differing with the final report submitted by the

police took cognizance against three of the accused named in the

complaint petition including the petitioner.Power underSection-482Cr.P.C. is conferred upon the High

Courts to exercise inherent powers ex debito justitiae to do real and

substantial justice for the administration of which alone , it exists or to

prevent the abuse of the process of the Court. In other words, inherent

power can be exercised to give effect      to an order under the Court to

secure the ends of justice .However, the Hon'ble Apex Court has times

without number cautioned the High Courts to exercise this power

sparingly, carefully and with circumspection.It goes without saying and is settled principle of law that after

the Police investigation, the matter is to be decided by a court of law.In Abhinandan Jha -Vrs. Dinesh Mishra ( AIR 1968 SC 117),

it was laid down that the function of the Magistracy and       the-3-Police are entirely different and though the Magistrate may or may not

accept the report and take suitable action according to law , he cannot

impinge upon the jurisdiction of the police by compelling them to

change their opinion. However, that does not mean that the Magistrate

is absolutely powerless and it is open to him to differ from the final

report submitted by the police , take cognizance of an offence and

proceed according to law.Admittedly, there is no obligation on the Magistrate to accept

the report, if he does not agree with the opinion formed by the police.

The power to take cognizance notwithstanding formation of the opinion

by the police, which is the final stage in the investigation has been

provided for inSection-190(1)(c)Cr.P.C,.Then again in Minu Kumari -Vrs. State of Bihar, reported in

(2006) 4SCC, 359 the Hon'ble Apex Court observed in paragraph-11

which reads as follows:" ------------ The position is, therefore, now well settled that

upon receipt of a police report underSection-173(2)a Magistrate is

entitled to take cognizance of an offence underSection-190(1)(b)of

the Code, even if the police report is to the effect that no case is made

out against the accused. The Magistrate can take into account the

statements of the witnesses examined by the police during the

investigation and take cognizance of the offence complained of and

order   the issue of process to the accused.Section-190(1)(b)does not

lay down that a Magistrate can take cognizance of an offence only if-4-the Investigating Officer gives an opinion that the investigation has

made out a case against the accused. The Magistrate can ignore the

conclusion arrived at by the Investigating Officer and independently

apply his mind to the facts emerging from the investigation and take

cognizance of the case, if he thinks fit, exercise his powers underSection-190(1) (b)and direct the issue of process to the accused."In the said Judgment, It was also observed

           "--------- All Courts , whether civil or criminal possess , in

the absence of any express provision, as inherent in their constitution,

all such powers as are necessary to do the right and to undo a wrong in

course of administration of justice on the principle quando lex aliquid

alicui concedit , concedere videtur id       sine quo res ipsa esse non

potest." And again

          "--------- Authority of the Court exists for advancement of

justice and if any attempt is made to abuse that authority so as to

produce injustice, the court has power to prevent abuse-------"In the instant case merely because the Magistrate has differed

from the final report submitted by the police after due investigation

cannot by itself be said to be an abuse of the process of the court. At this

stage, we are not required to look into the defence propounded by the

petitioner which can only be looked into in course of the trial. If the

Magistrate has found sufficient materials for proceeding further with the

case and has taken cognizance of the offences, this Court in exercise of

powers underSection-482Cr.P.C. cannot quash such orders.In the facts and circumstances of the case, and for the reasons-5-discussed above I do not find any merit in this application, which is

dismissed.(Abhijit Sinha,J)



Patna High Court
Dated : the July 4th ,2008.Nawal Kishore Singh, A.F.R.