The Magistrate has the power to differ with the opinion of the police and proceed according to law after the police submits final form. There is a clear separation between the stages of taking cognizance and summoning the accused during trial, and limitations on summoning accused persons at subsequent stages.

Nagendra Rai, J.

1. These petitioners are aggrieved by the order dated 29.7.2003 passed by the Judicial Magistrate 1st Class, Danapur in G.R. No. 946 of 2000 taking cognizance under Secs. 148, 149, 341, 323, 307, 380, 302 and 34 of the Indian Penal Code and 27 Arms Act against the petitioners and others.

2. The facual profile of the case is that Ram Chandra Rai, resident of village Chihatar, P.S. Maner, District-Patna lodged fardbeyan on 27.6.2000 at 9.30 a.m. before the S.I. of Pirbahore Police Station alleging inter alia that on the preceding day on 26.6.2000 at about 3.30 p.m. he along with his deceased son Buddhi Yadav was returning to his village home from Maner Bazar and when he reached near Maner Tola, 17 accused persons including these six petitioners, namely Umesh Roy, Ram Prit Roy @ Ram Krit Roy, Modi Roy, Vikram Roy, Kamlesh Roy and Baban Roy came there armed with lathi, danda and pistol and caught hold of his deceased son Buddhi Rai and accused Hridya Roy fired at him causing injury on the neck, as a result, he fell down. The informant could not proceed further due to fear. In the meantime, aforesaid 17 persons including these petitioners assaulted the deceased with lathi and danda and seeing the aforesaid ghastly incident the informant fell down. In the meantime, nine of the co-villagers, namely, Kunwar Singh, Vidya Bhushan Singh, Bhairo Singh, Amit Kumar, Bharat Prasad Singh, Manoj Singh, Mithilesh Singh, Munna Kumar and Lakshman Kumar, who were also returning from Maner Bazar, also reached there. The accused persons including these petitioners seeing them chased and indulged in indiscriminate firing. Aforesaid nine persons took shelter in the house of Bachcha Singh and Jawahar Prasad Singh, the co-villagers, who had constructed pucca house there. All the miscreants, including the petitioners thereafter attacked the house of aforesaid two persons and caused injury to the aforesaid nine co-villagers of the informant. In the meantime, the accused persons along with their companions also entered in the house of Bachcha Singh and Jawahar Prasad Singh and looted articles. Thereafter, the injured were taken to hospital where the son of the informant Buddhi Rai died.

3. The motive uttered by the informant for the occurrence was that on 26.6.2000 at 2.30 p.m. one of his co-villagers was grazing his buffalo and some, of the accused persons named in the FIR assaulted him. However, the matter was pacified but due to that reason they committed the aforesaid crime. On the basis of the said fardbeyan Maner Police registered Maner P.S. Case No. 127 of 2000 and after investigation submitted final form dated 25.3.2003 and sent up accused Hridya Rai, Sharda Ram, Rajaram Rai, Raghubar Rai, Manoj Kumar, Dilip Kumar and Kedar Rai on coming to the conclusion that there are materials against them and did not send up these six petitioners and two others. Two of the accused persons alleged to have been named in the FIR are stated to be dead.

4. By the impugned order the learned Magistrate after perusal of the record differed with the opinion of the police and took cognizance and summoned these petitioners also for facing trial, though as stated above, they along with two others were not sent up for trial by the police while submitting final report under sec. 173 of the Code of Criminal Procedure.

5. Learned counsel appearing for the petitioners submitted that once the police did not send up the petitioners after having found that no case was made out for sent up for trial, the learned Magistrate was not justified in issuing processes against them also while taking cognizance and issuing processes against the accused persons who were sent up for trial.

6. Learned counsel appearing for the State, on the other hand, submitted that after the police submits final form which may be either charge-sheet or final report stating that no case is made out against the accused persons or charge-sheet against some accused only and remaining are