Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 882 (PAT)

Janeshwar Yadav v. State of Bihar

2014-08-13

ASHUTOSH KUMAR

body2014
Ashutosh Kumar, J. – Heard Mr. Anil Kumar no. 6, counsel appearing on behalf of the petitioner and Mr. Jharkhandi Upadhyaya, counsel for the State. 2. The petitioner has challenged the order dated 05.12.2006 passed by the learned Magistrate 1st Class, Aurangabad in Complaint Case No. 266 of 2005 (Tr. No. 1472 of 2006) whereby cognizance has been taken under Sections 279 and 304A of the Indian Penal Code. 3. The opposite party no. 2 lodged a complaint vide Complaint Case No. 266 of 2005, with respect to an occurrence dated 02.07.1999 alleging that because of rash and negligent driving of a tractor by the petitioner, his brother Sunil Kumar Singh met his death. 4. On the basis of the aforementioned complaint, an enquiry under Section 202 of the IPC was initiated. After perusing the complaint and the depositions of the witnesses offered on behalf of the prosecution, the learned Judicial Magistrate 1st Class, Aurangabad vide his order dated 05.12.2006 took cognizance of the offence under Sections 279 and 304A of the Indian Penal Code. 5. Counsel for the petitioner submits that earlier to the lodging of the present complaint after about six years of the occurrence, the opposite party no. 2 had lodged a similar complaint in the year 1999. Complaint Case No. 713 of 1999 was instituted at the instance of O.P. No. 2, which stood dismissed vide order dated 04.12.2004 because of non-prosecution (the complaint referred to above and the order of dismissal having been annexed as Annexures 2 and 2A to the application). 6. It has been further submitted on behalf of the petitioner that much prior to the aforementioned two complaints, the father of the deceased who is also the father of the O.P. No. 2 had lodged a case with respect to the death of his son which was registered as Daudnagar P.S. Case No. 76 of 1999 dated 02.07.1999 under Sections 279 and 304A of the Indian Penal Code. 7. The aforementioned FIR was investigated and a report was submitted vide Final Report No. 88 of 1999 dated 30.07.1999. 8. A perusal of the report, shows that the police found that because of the rash and negligent driving of the deceased himself, he met his end. 9. 7. The aforementioned FIR was investigated and a report was submitted vide Final Report No. 88 of 1999 dated 30.07.1999. 8. A perusal of the report, shows that the police found that because of the rash and negligent driving of the deceased himself, he met his end. 9. The counsel for the petitioner therefore, submits that the order taking cognizance is bad as no explanation also has been sought for by the learned Court below in taking cognizance of an offence which was committed about six years ago. 10. Considering the fact that earlier also a complaint was lodged at the instance of O.P. No. 2 which stood dismissed for non-prosecution and FIR was also lodged by the father of the deceased as well as the O.P. No. 2 which ended in submission of a report that the deceased himself was to be blamed for his death, the order taking cognizance is held to be bad and is set aside. 11. The application stands allowed.