Petitioners challenged the lower court's order taking cognizance of an IPC offence in a criminal miscellaneous petition. The High Court dismissed the plea, holding that the complainant's solemn affirmation established a prima facie case.
Liberty given to petitioners to raise all points before the court below at an appropriate stage.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.36688 of 2011
====================================================== 1. Mohan Mahto S/O Late Ram Sawrup Mahto, R/O Village- Malipur Pakari, P.O.- Bhaser Machhaha, P.S. and Distt.- Sitamarhi 2. Lakshan Mahto @ Makhan Mahto S/O Late Khelawan Mahto, R/O Village- Malipur Pakari, P.O.- Bhaser Machhaha, P.S. and Distt.- Sitamarhi .... .... Petitioner/s Versus 1. The State Of Bihar 2. Ram Briksh Mahto son of late Parmeshwar Mahto R/O Village- Malipur Pakari, P.O.- Bhaser Machhaha, P.S. and Distt.- Sitamarhi .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Devendra Kumar, Adv. For the Opposite Party/s : Mr. Arun Kumar Pandey, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER
2 04-09-2012 Heard learned counsel for the petitioners and learned counsel for the State.
In this case, petitioners are challenging the order dated 16.8.2011 by which the court below has found sufficient materials to take cognizance under sections 147, 323, 341 and 149 of the Indian Penal Code and has refused to take cognizance under section 395 of the Indian Penal Code.
From the F.I.R. it appears that the complainant was sleeping in his grocery shop situated at Pakari Chowk and the accused persons went to the shop of the complainant and requested to open for purchasing flour and sugar. As it was night, the complainant refused to open his shop but the accused persons persuaded the complainant being the co-villager for opening the
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shop. On opening the shop, the accused persons have entered into the shop and assaulted the complainant with Leg, Fists and Lathi and took away articles and Rs. 40,000/-.
It also appears that the Police investigated the matter and submitted the Final Form in favour of the accused persons but on the basis of the protest petition, the court below took cognizance.
The counsel for the petitioners submits that there was a dispute which arose in connection with cutting of the earth in agricultural field. He further submits that the Police has investigated the matter and did not find any material against these petitioners and has recommended a proceeding for lodging the false case, Anenxure-5 to this petition.
The counsel for the petitioners further submitted that the complainant did not receive any injury as is apparent from Annexure -3 to this petition.
The counsel for the petitioners submits that his own witnesses were examined along with the complainant, did not support his version and as such, the court below has wrongly taken cognizance for offence against the petitioners.
Having considered the rival contention of the parties, at this stage, the defence of the petitioners cannot be looked but to
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see as to whether prima facie case is made out against the petitioners or not. From the statements of complainant on solemn affirmation about the incident in detail is sufficient for prima facie case and as such, it cannot be said that the court has wrongly taken cognizance in this case.
This Court does not find any merit in the present case. Accordingly, this petition is dismissed. However, liberty is given to the petitioners to raise all the points before the court below at the appropriate stage and the court below will look into the matter and pass the order without being prejudiced by this order.
(Shivaji Pandey, J)
Mahesh/-
Mohan Mahto
Lakshan Mahto @ Makhan Mahto
The State Of Bihar
Ram Briksh Mahto
Shivaji Pandey
As recorded by the court registry
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