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2005 DIGILAW 1064 (PAT)

Mahendra Thakur v. State of Bihar

2005-12-13

body2005
ORDER Petitioners have filed this application under Section 482 of Criminal Procedure Code (In short "CrPC") for quashing the order dated 28.09.2004 passed by Sessions Judge, Gaya in criminal revision No. 91 of 2004 allowing the revision and setting aside the order dated 21.06.2004 passed by Sub-divisional Judicial Magistrate. Sherghati in Sherghati Police Station Case No. 56 of 2004 taking cognizance against the petitioners under Sections 147, 148, 149, 323, 324, 325 and 504 of Indian Penal Code (in short "I.P.C") and directing the learned Sub-divisional Judicial Magistrate to consider the matter and pass order afresh in accordance with law in the light of observation made by him in the impugned order. 2. Brief facts of the case are that on the complaint of opposite party No.2 that on 17.04.2004 at about 8 P.M. in the night, she buffalo of petitioner No.1 damaged his wheat crop and when he lodged a complaint to petitioner No.1, he was abused and on 'hulla' raised by petitioner no.1, other petitioners, variously armed with lathi, stick, khanti, garasa came there and they assaulted opposite party No.2 and when on hulla raised by opposite party No.2, some other persons came there to save him, they were also assaulted by the petitioners, Sherghati Police Station Case no. 56 of 2004 was registered under Sections 147, 148, 149, 448, 323, 307 and 507 of IPC against the petitioners. Petitioner No.3 Krishna Thakur also lodged a counter case against opposite party No.2 and others on the allegation of assault and theft of property from his house and his case was numbered as Sherghati Police Station Case No. 57 of 2004. Both the case were investigated by local police and after investigation, police submitted chargesheet under Sections 147, 148, 149, 323, 324, 325 and 504 of IPC in Sherghati Police Station Case No 56 of 2004 and the learned Sub-divisional Judicial Magistrate took cognizance in this case under the aforesaid sections of I.P.C. against the petitioners. Opposite party No.2 filed a criminal revision No. 91 of 2004 before learned Sessions Judge, Gaya on the ground that learned Sub-divisional Judicial Magistrate, Sherghati did not apply his judicial mind and passed order taking cognizance against the petitioners in a mechanical way ignoring the requisition of Investigating Officer to incorporate Sections 326 and 307 of IPC in the order taking cognizance against the petitioners. The learned Sessions Judge allowed this revision and directed the learned Sub-divisional Judicial Magistrate to consider the matter afresh in the light of some observations made in the order and then pass order in accordance with law. 3. Petitioners have challenged the impugned order on the ground that the learned Sub-divisional Judicial Magistrate, Sherghati, after considering the charge-sheet and materials available in case diary, took cognizance under various sections of IPC and learned Sessions Judge has interfered with the order taking cognizance which was an interlocutory order and the order of learned Sessions Judge, if allowed to stand, will create an anomalous situation for the Magistrate because it will mean that he will have to review his earlier order for which he is not legally empowered to do so. Their further ground is that trial Court should have considered the issue under consideration at the time of hearing on the charge matter. Opposite party No. 2 has appeared and has opposed the prayer of petitioners for quashing the impugned order. 4. Learned counsel appearing on behalf of petitioners submits that the learned Sub-divisional Judicial Magistrate, after considering the charge-sheet and materials in case diary, took the cognizance under Sections 147, 148, 149, 323, 324, 325 and 504 of IPC by his order dated 21.06.2004 and there is neither any illegality or irregularity in his order. He has further submitted that although the learned Sessions Judge, by the impugned order has remanded the case to the Court of Sub-divisional Judicial Magistrate, Sherghati for reconsidering the entire matter and passing order afresh in accordance with law but at the same time he has given a finding that the matter by learned Sub-divisional Judicial Magistrate has to be considered in the light of observations made by him in the impugned order. About the observation, it is submitted that the learned Sessions Judge in para-4 of the impugned order has observed that "There is force and substance in the contention of the learned counsel for the informant/petitioner that at least Sections 307 and 326. IPC, which is apparent from the record, should have been mentioned in the cognizance order" and in para-5 of impugned order, learned Sessions Judge has after describing the nature of an injury of injured Kuleshwar Thakur has observed that “So, there seems to be sufficient material on the record to attract Sections 326 and 307 of IPC". IPC, which is apparent from the record, should have been mentioned in the cognizance order" and in para-5 of impugned order, learned Sessions Judge has after describing the nature of an injury of injured Kuleshwar Thakur has observed that “So, there seems to be sufficient material on the record to attract Sections 326 and 307 of IPC". It is further argued that after giving these observations, nothing has been left to be decided by the learned Sub-divisional Judicial Magistrate. Sherghati and if impugned order is allowed to stand, the Sub-divisional Judicial Magistrate, Sherghati will have no option but to take cognizance under Sections 326 and 307 of IPC and, therefore, the impugned order, by which the case has been remanded to Sub-divisional Judicial Magistrate, Sherghati for Considering the matter and passing order afresh in accordance with law, will become meaningless. 5. The learned counsel of petitioners, relying upon a decision of a Single Judge of this Court in the case of M.K. Agrawal and another Vs. The State of Bihar and another ( 2002 (2) PLJR 28 , has argued that cognizance is taken of a case and not under particular sections of penal law. The facts of the present case are quite different from the case which has been relied upon by the learned counsel of petitioners because in that case order of cognizance under Sections 420, 424, 407/34 and 406 of IPC was challenged on the ground that no case under some sections in which cognizance was taken was made out and the Court, after observing that it was to consider only the legality or propriety of the order of cognizance as also to see whether any offence was committed by the alleged overt act committed by the accused persons of the case, passed the order dismissing the revision. In the present case before learned Sessions Judge, the grievance of opposite party No.2 was that inspite of materials on record showing that one injured, namely, Kuleshwar Thakur had received incised wound and he was advised X-ray of scalp and, thereafter, opinion of Medical Officer was received showing that the injury was grievous, no cognizance either under Section 326 or Section 307 of IPC was taken. The impugned order further shows that Investigating Officer had filed a requisition on 16.06.2004 in the Court of Sub-divisional Judicial Magistrate, Sherghati for taking cognizance under Sections 326 and 307 of IPC but this requisition was not considered. From the impugned order, it is not clear whether the opinion of Medical Officer showing the nature of injury of Kuleshwar Thakur as grievous was received during the course of investigation or it was received after filing of the charge-sheet and was submitted by Investigating Officer alongwith a petition. It is true that by impugned order the matter has been remanded back to the Court of Sub-divisional Judicial Magistrate, Sherghati for reconsidering the matter and passing order afresh but then I find that in the impugned order, there are observations that Sections 326 and 307 of IPC are also attracted. It is true that for Section 307 of IPC, it is not the injury which alone prima facie proves a case under this section because .it is the intention which is required for discharge. The nature of injury, the weapon used in inflicting injury, the part of body on which injury is inflicted etc are considered only to find out the intention of the person responsible for causing such injury or injuries as the case may be but when order taking cognizance states that cognizance was taken under some sections mentioned in the order and if there are materials in case diary showing that there was one incised wound which was grievous in nature in that case omission of Magistrate to take cognizance under relevant section if allegation of assault has prima facie been found true will certainly give occasion to informant for raising a grievance that sections mentioned in the order taking cognizance have not been mentioned correctly. By impugned order if the matter has been remanded to the Court of Sub-divisional Judicial Magistrate, Sherghati for reconsideration. I find that no harm has been caused to the petitioners. By impugned order if the matter has been remanded to the Court of Sub-divisional Judicial Magistrate, Sherghati for reconsideration. I find that no harm has been caused to the petitioners. Had there been no impugned order even then the learned Sub-divisional Judicial Magistrate, Sherghati who, after taking cognizance kept the record in his own file for disposal, would have framed charges under Sections 326 and 307 of IPC against the petitioners but at the same time, the grievance of the petitioners that in impugned order, the learned Sessions Judge has made certain observations to the effect that there are sufficient materials to attract Sections 326 and 307 of IPC, is genuine. This observation cannot be allowed to stand. 6. In the result, this application is dismissed. The Sub-divisional Judicial Magistrate, Sherghati is directed to reconsider the matter and pass order afresh on the basis of materials available in case diary in accordance with law ignoring the observations made in paras-4 and 5 of the impugned order.