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Patna High Court · body

2011 DIGILAW 2031 (PAT)

Chandrika Pandit v. State of Bihar

2011-09-21

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ORDER 1. Heard learned counsel for the parties. 2. This application has been filed for quashing the order dated 29.11.2007 passed by Chief Judicial Magistrate, Nalanda at Biharsharif in Bihar P.S. Case No. 258 of 2007 arising out of Complaint Case No 829© of 2007 in which cognizance has been taken under sections 364/120(B) of the Indian Penal Code against the petitioner. 3. Informant's son is shown kidnapped in the case. F.I.R. was lodged, matter investigated by the Investigating Officer and final form submitted in the case exonerating petitioner from the liability, differing the same (opinion of the Investigating Officer) cognizance is taken in the case. 4. It is admitted to the parties also that it is well within competence of the Magistrate to take cognizance differing the opinion of investigating agency but in the instant case, informant and witnesses to corroborate prosecution case appeared and stated false implication of petitioner and reason for their doing so is given by them in their statement under section 161 Cr.P.C. that Satish Kumar, Ram Deo Pandit, Upendra Chouhan, Shambhu Pandit took informant's son in Rajgir Mela and got him disappeared. In that connection when informant was talking this petitioner on telephone, he was not replying in clear word. Reason for talk to this petitioner is also given that petitioner's house was in side of house of Ram Deo Pandit that was reaction only. Further statement of informant is recorded in paraghraph-4 of the case diary. Other witnesses are examined in paragraphs-5 and 9 of the case diary. 5. Only making of allegation cannot be taken for constituting prima facie case even for cognizance unless that is corroborated by witnesses, number may be minimized to one. Thus, it is clear that material is lacking in the case for differing opinion reached by the Investigating Officer in the instant case. So cognizance taken in the case is illegal and without jurisdiction. 6. Accordingly, this application is allowed and the order taking cognizance against this petitioner in Bihar P.S. Case No. 258 of 2007 arising out of 829(C) of 2007 is hereby quashed.