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2011 DIGILAW 1809 (PAT)

Vijay Singh, son of Bhola Singh v. State of Bihar

2011-08-26

AMARESH KUMAR LAL

body2011
Order The informant-petitioner has preferred this revision application against the order dated 14.1 .2009 passed by the learned Chief Judicial Magistrate, Begusarai in Begusarai Mufassil P.S. Case No. 324/07 by which the prayer of the petitioner for taking cognizance against the accused opposite party nos. 2 to 11 has been rejected. 2. The prosecution case, in brief, is that ten named accused persons (Opposite Party Nos. 2 to 11) came to the house of the father-in-law of the petitioner and by using abusive language asked whereabout of Mohan Rai at which it was said that he was not at his house. The action of the accused was protested by the family members of the father-in-law of the informant petitioner. Thereafter, Sohan Rai was forcibly taken by the accused in place of Mohan Rai. It has been further alleged that the accused locked the family members of the informant in a room and fled away. taking Sohan Rai in the vehicle. On the statement of the informant-petitioner, Begusarai Sadar Mufassil P.S. Case No. 324/07 was lodged for the offence punishable under Sections 447, 342 and 364/34 of the I.P.C. Subsequently, Section 302 of the I.P.C. was added against the accused. After investigation, charge-sheet was submitted against the accused Rahul Rai vide charge-sheet no. 285/08. The case against the accused opposite party nos. 2 to 11 was found not true and the investigation against the other accused was kept pending. The learned Chief Judicial Magistrate took cognizance against the accused Rahul Rai. and the case was transferred to the Court I of other Judicial Magistrate for commitment and the office was directed to split" up the record since the investigation against the co-accused was pending. A petition was filed on behalf of the petitioner in the court of learned C.J.M. for taking cognizance against the accused (opposite party nos. 2 to 11), which has been rejected by the learned C.J.M. after hearing learned counsel for both the parties. Thereafter, the petitioner has filed this application against the impugned order dated 14.1.2009. 3. Heard learned counsel for the petitioner, learned counsel for the State and the learned counsel for opposite party nO.10. The opposite party nos. 2 to 9 and 11 have not appeared even after service of notice. 4. Thereafter, the petitioner has filed this application against the impugned order dated 14.1.2009. 3. Heard learned counsel for the petitioner, learned counsel for the State and the learned counsel for opposite party nO.10. The opposite party nos. 2 to 9 and 11 have not appeared even after service of notice. 4. The main contention of the learned counsel for the petitioner is that there is sufficient material in the case diary to show that the accused opposite parties have committed the offence. The learned C.J.M. has also found that there is material against the accused to have committed offence, but he discarded their evidence as there is no eye witness of the alleged occurrence other than the relatives of the deceased. 5. The learned counsel for opposite party no. 10 submits that cognizance of the offence has already been taken by the learned C.J.M. and the order has been passed for issuance of notice against the sole accused Rahul Rai. He has further submitted that the learned C.J.M. has rightly rejected the petition dated 16.9.2008 filed by the petitioner for taking cognizance also against the accused opposite parties. The learned Magistrate has taken the cognizance against the Rahul Rai and thereafter, he was not competent to take cognizance against the other accused as he has no power to review his own order. He has further submitted that now the accused can only be summoned under Section 319 of the Cr.P.C. 6. After hearing the learned counsel for both the parties and on perusal of the carbon copy of the case diary, it appears that after investigation, charge-sheet was submitted against the sole accused Rahul Rai. The case against the accused opposite parties has been found not true and the investigation against the other accused was pending. It further appears that the learned C.J.M. has taken cognizance for the offence punishable under Sections 364, 302, 201 and 120B of the I.P.C. He has found a prima facie case against the sole accused Rahul Rai. It further appears that the petitioner has filed a petition dated 16.9.2008 before the learned C.J.M. It further appears from the carbon copy of the case diary that there is material against the accused opposite parties to show that they are also involved in the alleged occurrence. It further appears that the petitioner has filed a petition dated 16.9.2008 before the learned C.J.M. It further appears from the carbon copy of the case diary that there is material against the accused opposite parties to show that they are also involved in the alleged occurrence. The learned C.J.M. has also found that there is material against the accused opposite parties, but he has not taken cognizance against them as there is no eye witness of the alleged occurrence other than the relatives of the deceased. At the stage of taking cognizance, only a prima facie case is required to be found. It is not required to find out as to whether the evidence would lead to conviction of the accused or not. It is also settled principle of law that the Magistrate can take cognizance of the offence on police report itself against the accused not named in the final report. The Magistrate is not required to wait till the stage of Section 319 Cr.P.C. for taking cognizance against the accused not named as accused in charge-sheet. Reliance may be placed on a decision in the case of Uma Shankar Singh vs. State of Bihar and Am. reported in 2010 AIR SCW 5868. 7. Considering the facts and circumstances stated above, in my opinion, the impugned order is not fit to be sustained. The impugned order is set aside. The matter is remanded back to the learned Chief Judicial Magistrate, Begusarai for considering the case in accordance with law. 8. In the result, this revision application is allowed.