JOKHU BIND Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application at the instance of one of the F.I.R. named accused of Bhabhua P.S. Case No. 103 of 2006 is for the quashing of the order dated 28.11.2006 passed therein by the learned Chief Judicial Magistrate, Kaimur at Bhabhua, whereby he has taken cognizance against the petitioner also after differing from the final form submitted by the police in favour of the petitioner herein.

(2.) THE prosecution case is founded on the fardbeyan of one Birbal Pandey recorded at about 8.00 P.M. on 3.4.2006 at the Sadar Hospital, Bhabhua, and was in respect of an occurrence which allegedly took place earlier evening at around 5 P.M. According to the informant, he having taken paan from the shop of Subhash Bind proceeded towards Sikathi -Ruiya Road and on reaching the same he saw his brother Hemant Pandey being assaulted by the accused persons in front of the house of Janardan Dhobi. As he proceeded to the rescue of his brother he saw Bagedar Bind armed with a katta who on seeing him fired at him, Kishori Bind was armed with Ballam, Ram Ekbal Bind, Ekbal Bind and Upender Bind were armed with Gupti and the remaining accused including the petitioner herein were variously armed with Ballam, lathi and gupti. It is said that Hemant as a consequence of the assault fell down on the road. On hulla being raised several persons including the other brothers of the informant arrived on seeing which the accused retreated and also resorted to firing. The injured Hemant was removed to the hospital where he was declared to be dead. The cause of the occurrence is said to be the altercation which had ensued on 2.4.2006 over the she goat of Kishori Bind grazing the field of the deceased.

(3.) THE grievance of the petitioner is against the action of the learned Magistrate taking cognizance against him. The specious submission advanced by the learned Counsel for the petitioner, on this score, is that once the police after due investigation did not find a prima facie case against the present petitioner and a final form was submitted, it was incumbent upon the Magistrate to accept the same. It was also submitted that the law does not permit the Magistrate to differ from the police report. In support of the submissions reliance was sought to be placed on the decisions of Rameshwar Singh v. State of Bihar reported in 2006(4) P.L.J.R. 338 and Ram Nandan Singh v. State of Bihar reported in 2007(2) PLJR 825.