- (1.) RAVINDRA Singh, J. This application under Section 482, Cr. P. C. has been filed with a prayer to quash the order dated 10- 4- 2007 passed by learned C. J. M. Allahabad in case No. 1322 of 2007 arising out of charge-sheet submitted in case crime No. 18 of 2007 P. S. Civil Lines, District Allahabad whereby the learned C. J. M. has taken the cognizance and summoned the applicants to face the trial for the offence punishable under Section 304 IPC. It is contended by learned Counsel for the applicants that in the present case the F. I. R. was lodged under Section 304, IPC at P. S. Civil Lines, Allahabad on 10-1-2007 in respect of an incident in which a multi stories building which was under construction was collapsed, consequently some of the persons died and some of the person received injuries. The matter was investigated by the I. O. , thereafter I. O. came to the conclusion that the only offence under Section 304-A, IPC as made out, therefore the charge-sheet dated 8-4-2007 under Section 304-A, IPC has been submitted in the Court of learned C. J. M. Allahabad but surprisingly the learned C. J. M. Allahabad took the cognizance and summoned the applicants for the offence under Section 304, IPC and for the same offence the custody warrant of the applicants was also prepared. It is further contended by learned Counsel for the applicants that the learned C. J. M. Allahabad has passed the illegal order dated 10-4-2007 because he was under obligation to take the cognizance under Section 304-A IPC because the, charge- sheet was submitted under Section 304-A IPC. But learned C. J. M. Allahabad has exceeded to his jurisdiction by not taking the cognizance under Section 304-A, IPC but taking the cognizance under Section 304, IPC. The learned C. J. M. has not properly considered the material collected by the I. O. which discloses the offence only under Section 304-A IPC, even on the basis of material collected by the I. O. no offence under Section 304, IPC is made out, therefore, the impugned order as well as custody warrant are illegal, which are liable to be set aside.
(2.) IN reply of the above contention, it is submitted by learned A. G. A. that there is no illegality in the impugned order because in the present case the F. I. R. was lodged under Section 304, IPC, till the conclusion of the investigation is going on under Section 304, IPC, all of sudden the I. O. has submitted the charge-sheet under Section 304-A, IPC whereas on the basis of material collected by the I. O. offence under Section 304, IPC is made out. It is further submitted that it is not necessary for the learned Magistrate concerned to take the cognizance in the same offence in which the charge-sheet has been submitted. The order of cognizance is also passed with the application of the judicial mind on the basis of the material collected by the I. O. , the impugned order is not suffering from any illegality or irregularity, the present application is devoid of merit, therefore, it may be dismissed. Considering the facts, circumstance of the case, submissions made by learned Counsel for the applicants, learned A. G. A. and from the perusal of the record including the impugned order it appears that the learned C. J. M. Allahabad has properly considered the material collected by the I. O. The learned Magistrate was under obligation to consider the material collected by the I. O. and to apply judicial mind for considering the police report for taking the cognizance. The learned Magistrate came to the conclusion that in the present case prima facie offence under Section 304, IPC is made out, therefore, cognizance was taken under Section 304, IPC and in the same offence the custody warrant of the applicants was prepared. It is settled principle of law that as soon as the investigation is completed, the Officer Incharge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report as provided under Section 173 (2) Cr. P. C. The cognizance is always taken after application of judicial mind considering the material collected by the I. O. It is not necessary that the cognizance shall be taken only for the offence in which the charge-sheet has been submitted, the cognizance can be taken in some other offence also in which the charge-sheet has not been submitted, as in the present case the charge-sheet has been submitted under Section 304-A, IPC, but the learned C. J. M. has taken the cognizance under Section 304, IPC, because the learned Magistrate came to the conclusion that on the basis of material collected by the I. O. The prima facie offence under Section 304, IPC is made out. The impugned order is not suffering from any illegality or irregularity, therefore, the prayer for quashing the impugned order is refused. Accordingly this application is dismissed. Application dismissed. .;