Dismissed

Lakshman Mishra @ Laxman Mishra and Ors. v. the State of Bihar and Anr.

Patna HC1 Aug 2012CR. MISC./39956/2011

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition challenging the taking of cognizance by lower courts in an abduction case, the Patna High Court declined to view merits, noting sufficient material existed for cognizance. The Court dismissed the petition but granted liberty to raise issues during charge framing.

What did the court decide?

Petition dismissed; liberty granted to raise points before the trial court during framing of charge;

Lakshman Mishra @ Laxman Mishra and Ors. Vs the… — Criminal Trial and Appeal | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.39956 of 2011

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====================================================== 1. Lakshman Mishra @ Laxman Mishra son of Makhan Mishra, resident of village- Lakhnour, PS-Lakhnour, District-Madhubani. 2. Sanjeeb Mishra@Sanjeeb Kumar Mishra son of Lakshman Mishra, resident of village- Lakhnour,PS-Lakhnour,District-Madhubani. 3. Rajeeb Mishra son of Lakshman Mishra, resident of village- Lakhnour, PS-Lakhnour, District-Madhubani. .... .... Petitioner/s Versus

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The State Of Bihar 2. Saroj Devi Wife Of Hari Singh Lakhnour,PS-Lakhnour,DistrictMadhubani.

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.... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Praful Chandra Jha, Advocate For the Opposite Party/s : Mr. Ataur Rahman, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER

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2 01-08-2012 Heard learned counsel for the petitioners and learned counsel for the State.

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2. In this case, petitioners are challenging the order dated 29.5.2009 passed in Trial No. 1716 of 2009 by which the Sub-divisional Judicial Magistrate, Jhanjharpur has taken cognizance under section 364 of the Indian Penal Code and the Sessions Court vide order dated 20.8.2011 passed in Cr. Rev. No. 730 of 2008 by which the court of Sessions has remitted back the matter for passing a fresh order.

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3. It appears from the record that one Saroj Devi has filed a complaint petition before learned Sub-divisional Judicial Magistrate, Jhanjharpur who had referred the matter u/s section

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Patna High Court Cr.Misc. No.39956 of 2011 (2) dt.01-08-2012

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156 (3) Cr. P.C. to Police for registering the case as a Police case and to make an investigation. In pursuance thereof it was registered as Lakhnour (Madhepur) P.S. Case No. 195 of 2006.

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4. The counsel for the petitioners submits that after the investigation, the Police had submitted the Final Form and after proper investigation, the Police has recorded that the case is a false case and recommended for proceeding under sections 182/211 of the Indian Penal Code.

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5. It appears from the records that after the submission of the Final Form, the complainant had filed a protestcum-complaint petition vide C.R. No 173/2007 and on the basis of solemn affirmation and evidences of two witnesses, the court of Sub-divisional Judicial Magistrate has taken cognizance under section 365 of the Indian Penal Code vide order dated 10.6.2008. When the complainant/informant was not satisfied with the order she moved before the Sessions court in Cr. Rev. No. 730 of 2008 and the Sessions court vide order dated 18.12.2008 has set aside the order of Sub-divisional Judicial Magistrate and remanded back the matter for passing a fresh order. This order dated 18.12.2008 of the Sessions Judge was challenged before this Court in Cr. Misc. No. 12939 of 2009 wherein the Court has taken a view that without being arrayed as a party and without hearing the

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Patna High Court Cr.Misc. No.39956 of 2011 (2) dt.01-08-2012

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petitioners, the Sessions Judge has passed the wrong order, and this Court vide order dated 1.10.2010 has found substance in the argument and remanded back the matter to the Sessions Court.

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6. In the meantime, as the matter was remanded back by the Sessions Court, there was no scope for Sub-Divisional Judicial Magistrate who vide order dated 29.5.2009 has taken cognizance u/s 364 of the Indian Penal Code.

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7. When the matter was again remanded by this Court, the Sessions Court again considered the matter and vide order dated 20.8.2011 directed the court below to pass again a fresh order and refused to interfere with the order passed by his predecessor vide order dated 18.12.2008.

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8. The counsel for the petitioners submits that from the record it appears that the allegation that has been made in the complaint petition is against Amit Jha where it has been stated that Amit Jha told to the victim boy as he was to go to Patna whereas he was going to Kolkata along with his father, and he asked the victim boy that he might go along with them upto station, accordingly victim boy had gone along with Amit Jha.

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9. The counsel for the petitioners submits that the story has been made out that while the complainant-cuminformant had gone to temple to do Puja on 15.6.2006 where she

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Patna High Court Cr.Misc. No.39956 of 2011 (2) dt.01-08-2012

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over heard discussion with five persons, one of whom was Sanjeev Mishra who was saying about the victim boy not being in the world and when she came back to her house, she narrated the whole story about the discussion of Sanjeev Mishra along with other persons.

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10. The counsel for the petitioners submits that all the allegation even if taken on face value is against Amit Jha and petitioners are no way connected to the present case so much so that the counsel for the petitioners submits that the petitioner No. 1 who is aged 70 years is a retired teacher it is not expected from him to involve in such crime.

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11. The counsel for the petitioners submits that even if allegations are accepted, only the person involved will be Amit Jha and not these petitioners.

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12. He has further developed the argument that the complainant had filed a second complaint petition (Anexure-5 series) where she has given different stories that victim boy was handed over to Devsundar Rai and Jugeshwar Rai at Jhanjharpur Station itself and that case was dismissed for non-prosecution vide order dated 21.3.2007.

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13. The counsel for the petitioners submits that the story that has been propounded is that the victim boy has affair

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Patna High Court Cr.Misc. No.39956 of 2011 (2) dt.01-08-2012

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with the daughter of the Sanjeev Mishra has been denied in the solemn affirmation dated 18.5.2007 and on that basis the counsel for the petitioners submits that court below has wrongly exercised the power in taking cognizance u/s 364 of the Indian Penal Code as there is no material connecting these petitioners Even prima facie case is not made out against these petitioners. At best, it can be made out against Amit Jha.

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14. The counsel for the State has contradicted the argument of the petitioner and stated that the points raised are the defence of the petitioners which cannot be looked into at this stage. From the record itself appears that there are sufficient materials which show that the prima facie case is made out against these petitioners and on that basis the court below has rightly exercised the power in taking the cognizance.

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15. Having considered the rival contention of the parties, this Court does not want to give any opinion on the merit of the case otherwise it will affect either of the party to this case because at this stage the court was required to see the prima facie case. Both the courts below have found that materials are available for taking cognizance and has taken cognizance and it is undisputed fact that the traceless boy is still missing and has not been recovered.

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Patna High Court Cr.Misc. No.39956 of 2011 (2) dt.01-08-2012

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16. In this view of the mater, the missing of the boy is a serious matter and it cannot be said who is the person involved in the episode. However, liberty is given to the petitioners to raise all the points before the court below at the time of framing of charge and the court below will consider all the matters and pass a reasoned order.

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Accordingly, this petition is dismissed.

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(Shivaji Pandey, J)

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Mahesh/-

Lakshman Mishra @ Laxman Mishra and Ors. v. the State of Bihar and Anr.

Case brief

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Lakshman Mishra @ Laxman Mishra and Ors. v. the State of Bihar and Anr.

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