Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 244 (PAT)

Deo Prayag Sharma v. State of Bihar

2012-02-09

VIKASH JAIN

body2012
ORDER The present application has been filed for quashing the order dated 30.4.2010 passed in Bihta P.S.Case No. 243/08 by the learned Judicial Magistrate Ist Class, Danapur, Patna whereby the learned Magistrate has taken cognizance of the offences under Sections 341, 323, 325 and 307/34 IPC against the petitioners. 2. According to the written report given by the informant O.P. No. 2 there were some ongoing disputes between him and the petitioners relating to right of passage. It has been alleged that the present petitioners have assaulted and caused injuries to the family members of the informant as also to other villagers who intervened. Specific allegations have been made against the petitioner no.3 Amarendra Kumar and petitioner no. 5 Mirtunjay Kumar who are said to have been armed with pistols as also against petitioner no. 1 armed with farsa and petitioner no. 6 Shailendra Sharma armed with gharasa, who assaulted the informant with the intention of killing him. It is also stated that these persons severely assaulted the informant’s uncles Ashok Kumar and Vikash Kumar causing serious injuries to them and but for the intervention of the villagers, the petitioners might even have killed the informant and the other persons. 3. Learned counsel for the petitioners submits that as far as the cognizance of the offence under Section 307 is concerned it is evident on the face of it the same is not made out for the following reasons :- (a) It transpires from the written report itself that Amarendra Kumar and Mirtunjay Kumar had come armed with pistols and had it been the petitioner’s intention to cause death they could easily have used such arms and would not merely have assaulted with farsa and gharasa. (b) The injury reports (Annexures 3,4 and 5) clearly show the injuries to be simple in nature and not found on vital parts of the body which clearly shows that there was no intention to kill anyone and thus 307 Cr.P.C. is not attracted. (c) Even with reference to the supplementary injury report as brought on record by O.P. No. 2 (Annexure-A), at the highest, merely speaks of bleeding from right ear and cut mark on the chin. Though the same have been described as grievous in nature such nomenclature itself cannot be determinative and these do not answer to the description of the term as defined in Section 320 IPC. Though the same have been described as grievous in nature such nomenclature itself cannot be determinative and these do not answer to the description of the term as defined in Section 320 IPC. (d) In 1997 SCC (Cri) 1078 [Merambhai Punjabhai Khachar and others Vs. State of Gujarat] it was found that laceration had resulted in the right side of the head caused by firearm with the pellet striking the head, considering that the pellet had only grazed the head of the victim it was held that the ingredients of Section 307 were not satisfied rather the offence committed attracted Section 320 IPC. 4. Learned counsel for the O.P.No. 2 has vehemently opposed the petitioner’s prayer for quashing the order of cognizance and submits that the matter requires to be considered in detail which is possible only at the time of trial and this Court in its jurisdiction under Section 482 Cr.P.C. would not interfere in such cases. He submits that the learned Trial Court has rightly taken cognizance considering the serious nature of allegations in the written report. He relies upon the supplementary injury report (Annexure-A) to his counter affidavit filed today and submits that the injury in fact was grievous considering that it has caused bleeding from right ear which is a vital part of the body. He submits that whether or not such injury was likely to cause death and whether such injury was inflicted with the intention to cause death are matters of trial. 5. I am in agreement with the submissions of learned counsel for O. P. No. 2 that it is somewhat premature to quash the prosecution proceeding at this stage, considering the nature of the allegations and injury caused. At this stage, this Court is merely to see the legality of the cognizance order and whether the same has been passed in accordance with law, rather than carry out a mini-trial. 6. On perusal of the impugned order of cognizance I find that the learned Magistrate has taken into consideration the charge sheet filed by the police submitted after due investigation, as also the case diary, and has even taken note of the written arguments filed on behalf of the petitioners before arriving at his conclusion that a prima facie case is made out against the petitioners. In the above circumstances, I am not inclined to interfere at this stage. 7. In the above circumstances, I am not inclined to interfere at this stage. 7. The petitioners are always at liberty to raise all the points at the appropriate stage before the learned Trial Court. 8. With the above observations the present petition stands disposed of. ?