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2018 Supreme(Pat) 1536
IN THE HIGH COURT OF JUDICATURE AT PATNA
PRAKASH CHANDRA JAISWAL, J.
Basuki Kumar Jha @ Basuki Jha, son of Laliteshwar Jha - Petitioner
Versus
The State of Bihar & Ors. - Respondents
Criminal Miscellaneous No.4129 of 2015
Decided On : 07-09-2018
For the Petitioner:Mr. Rishit Deo Kumar Singh, Advocate.
For the State : Mr. Mukeshwar Dayal.
The main legal point established in the judgment is the significance of prima facie evidence and the court's role in considering only the prima facie case at the time of taking cognizance.
Headnote:
Section 482 - Criminal Procedure - Indian Penal Code, Sections 147, 148, 149, 341, 342, 323, 324, 307, 379, 504 and 302 - The court discussed and referenced the provisions of Sections 147, 148, 149, 341, 342, 323, 324, 307, 379, 504, and 302 of the Indian Penal Code in reaching its decision. The court emphasized the importance of prima facie evidence and the role of the court in considering only the prima facie case at the time of taking cognizance.
Fact of the Case:
The case involved an application under Section 482 of the Code of Criminal Procedure against an order taking cognizance of offences under various sections of the Indian Penal Code. The petitioner challenged the order, arguing that there was no prima facie case against him.
Finding of the Court:
The court found that there was prima facie evidence against the petitioner, emphasizing that the court is required to consider only the prima facie case at the time of taking cognizance.
Issues: The issues revolved around the prima facie evidence against the petitioner and the legality of the order taking cognizance of the offences.
Ratio Decidendi: The court emphasized the importance of prima facie evidence and the limited role of the court in considering only the prima facie case at the time of taking cognizance.
Final Decision: The application was dismissed, and the court upheld the order of cognizance, stating that there was no impropriety and illegality in the impugned order.
Heard learned counsel for the petitioner and learned APP for the State.
2. This application under Section 482 of the Code of Criminal Procedure has been preferred against the order dated 28.01.2011 passed by the learned Chief Judicial Magistrate, Madhepura in Udakishunganj P.S. Case No.23 of 2010, whereby the learned Magistrate took cognizance of the offence under Sections 147, 148, 149, 341, 342, 323, 324, 307, 379, 504 and 302 of the Indian Penal Code against the petitioner and other eight accused persons.
3. The factual matrix of the case is that Udakishunganj P.S. Case No.22 of 2010 was instituted under Section 147, 148, 149, 323, 347, 342, 324, 307, 379, 504 and 302 IPC on the basis of fardbeyan of Madan Prasad Yadav with the allegation in succinct that on 02.03.2010 at 5:30 PM he along with his co-villager, namely, Munna Kumar Singh was proceeding to Udakishunganj Bazar on motorcycle. When he reached near main road at Durga Asthan Chowk 80-90 miscreants armed with various weapons with common intention encircled them. Sanjay Kumar, Munna Choudhary and Karia Choudhary assaulted him indiscriminately by means of hand pipe making him injured. Kishore Paswan assaulted his companion Munna Kumar Singh on his head by means of sword making him injured. When his father Arjun Yadav and brother Santosh Yadav arrived there and raised protest, Kundan Jha, Chhedi Mishra, Santosh Gupta, Navneet Kumar @ Gulo and Kunal @ Mithu Prasad Gupta armed with farsa & pipe assaulted them on their head and made them seriously injured. Resultantly his father fell senseless there. Basuki Mishra resorted his brother by means of sword inflicting head injury to him. Manoj Sah, Abhimanyu Singh, Pawan Mishra and Amit Kumar assaulted them by means of lathi and rod. Baidyanath Choudhary, Manoj Sah and Dipak Kumar took out his cash of Rs.5300/- and mobile. There were several other accused persons in the mob.
4. The aforesaid case was investigated by the police and on conclusion of the investigation the I.O. submitted charge-sheet under Sections 147, 148, 149, 341, 342, 323, 324, 307, 379, 504 and 302 of the Indian Penal Code against the petitioner and eight other accused persons.
5. On perusing the charge-sheet and case diary, the learned Magistrate took cognizance of the offence under Sections 147, 148, 149, 341, 342, 323, 324, 307, 379, 504 and 302 of the Indian Penal Code against nine accused persons including the petitioner.
6. Being aggrieved and dissatisfied with the cognizance order, as detailed in earlier paragraph, the petitioner has preferred this application.
7. It is submitted by learned counsel for the petitioner that the petitioner is not named in the F.I.R. instead one Basuki Mishra is the named accused. All the independent witnesses examined by the I.O. during the course of investigation have not named the petitioner. The petitioner appeared and surrendered before the learned C.J.M. but the learned C.J.M. refused to remand him finding his name not mentioned in the F.I.R. Hence, no prima facie case is made out against him. However, the Superintendent of Police in his supervision note without any basis and material on record implicated the petitioner in the occurrence. Hence taking cognizance against the petitioner is nothing but abuse of process of Law.
8. On the other hand, learned APP for the state vehemently opposing the prayer of the petitioner submitted that during the course of investigation number of witnesses in para-58, 59 & 60 have taken name of the petitioner in the occurrence and finding the complicity of the petitioner in the occurrence the I.O. has submitted charge-sheet against the petitioner as well. He has further submitted that the learned Magistrate has rightly taken cognizance against the accused persons including the petitioner finding prima facie case against them. At the time of taking cognizance the court is required to consider only prima facie case and not to examine the pros and cons of the case meticulously. Hence,
