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2016 DIGILAW 1913 (ALL)

Ranjeet Yadav v. State of U. P.

2016-05-17

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. The present application under Section 482 CrPC has been filed with the prayer to set-aside/quash the impugned cognizance order dated 1.3.2016 passed by the Chief Judicial Magistrate, Gorakhpur in criminal case no. 631 of 2016 arising out of case crime no. 303 of 2015 under Sections 302, 323 and 504 IPC, P.S. Jhangaha, District Gorakhpur whereby the concerned Court took cognizance against the applicants for offences under Sections 323, 504 and 302 IPC whereas charge-sheet was filed under Sections 304, 323 and 504 IPC. Further prayer has been made to stay the further proceedings of the aforesaid case. 2. Heard Shri Rajul Bhargava, learned counsel for the applicants and the learned AGA appearing for the State. 3. It was submitted by the learned counsel for the applicants that charge-sheet in the matter was submitted for the offences under Sections 304, 323 and 504 IPC but the concerned Magistrate vide impugned order dated 1.3.2016 took the cognizance for the offences under Sections 302, 504 and 323 IPC, which is illegal. Essential ingredients to constitute the offence under Section 302 IPC are lacking. Referring to the injury report and the statement of witnesses recorded under Section 161 CrPC, it was submitted that the bail application of the applicants was allowed for the offence under Section 304 IPC. Hence, at this stage, there was no necessity to take cognizance for the offence under Section 302 IPC. The impugned order suffers from illegality and infirmity and is liable to be quashed by this Court. 4. On the other hand, learned AGA opposing the prayer submitted that if the evidence is available, the Magistrate concerned is empowered to take cognizance for the offence under Section 302 IPC. There is no infirmity or illegality in the impugned order warranting interference by this Court. 5. I have considered the rival submissions made by the learned counsel for the parties and gone through the entire record including the impugned order. 6. A perusal of the record shows that initially in the matter an F.I.R. was lodged for the offence under Sections 304, 323 and 504 IPC and after investigation, the Investigating Officer submitted charge-sheet for the same offences but the Magistrate concerned took cognizance for the offence under Section 302 IPC. 6. A perusal of the record shows that initially in the matter an F.I.R. was lodged for the offence under Sections 304, 323 and 504 IPC and after investigation, the Investigating Officer submitted charge-sheet for the same offences but the Magistrate concerned took cognizance for the offence under Section 302 IPC. The Magistrate dealing with the matter is empowered to take cognizance for the offences which have not been mentioned in the charge-sheet if essential ingredients are available from the evidence as taking cognizance is a judicial act to be done by the Magistrate concerned. After close scrutiny of the entire evidence available in the matter, in my view, the order passed by the court concerned cannot be said to be illegal. Only on this ground that the applicants have been enlarged on bail for the offences under Sections 304, 323 and 504 IPC, the order passed by the concerned Magistrate can not be said to be illegal. Hence, no ground is made out to invoke inherent jurisdiction under Section 482 CrPC. 7. So far as the prayer regarding release of the applicants on the same bail bonds for the offence under Section 302 IPC is concerned, it is the discretion of the court concerned. No such direction can be given. It is made clear that on the basis of same set of evidence, the applicants have already been granted bail for the offence u/s 304 IPC. 8. In view of the aforesaid discussions, the application being devoid of merits is liable to be dismissed and the same is accordingly dismissed.