This order dismisses a petition for quashing the impugned order of cognizance. The court held that it cannot inquire into the truthfulness of allegations at the cognition stage, as material exists suggesting an offence.
Petition for quashing the order of cognizance dismissed.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No. 36242 of 2012
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.... .... Opposite Party/s
====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER
2 09-05-2013 Heard.
This is a petition for quashing the order dated 13.07.2012 passed by Additional Chief Judicial Magistrate, Danapur in connection with Bihta P.S. Case No. 23 of 2005 dated 06.02.2005 whereby and whereunder the learned court below took cognizance for the offences under Sections 147, 148, 149, 323, 379, 307 and 325 of the Indian Penal Code as well as Section 27 of the Arms Act against the petitioners on the basis of order dated 05.04.2005 passed by the learned Additional Chief Judicial Magistrate, Danapur by which cognizance has been taken under aforesaid Sections of the Indian Penal Code against Mahendra Singh and Ashok Kumar as the police had filed charge sheet earlier in those Sections as above mentioned against them but later on police submitted
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supplementary charge sheet under Sections 147, 148, 149, 323 of the Indian Penal Code against the petitioners and rest of the Sections were found not true by the police during investigation even as medical board has clearly stated in his report that there is no fire arm injury to the informant and there is no surgical interference with the informant.
Learned counsel for the petitioners, however, submits that initially the case was filed against the five accused persons for the offence under Sections, 147, 148, 149, 323, 325, 307 and 379 of the Indian Penal Code as well as Section 27 of the Arms Act with an allegation that the accused persons fired on the informant and one of the fire-shot touches the toe of the leg of the informant.
The police after investigation against two accused persons, namely, Mahendra Singh @ Mahendra Sharma and Ashok Kumar submitted charge-sheet against whom the cognizance has been taken by order dated 05.04.2005 for the offence under Sections 307 and other allied Sections of the Indian Penal Code. However, it is contended that subsequently the police during further investigation constituted a Medical Board regarding the alleged injury in the toe of the informant. The Medical Board opined that there is no surgical interference in the
toe and there is no fire arm injury in the toe of the informant.
On that basis the police submitted a charge-sheet against three
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accused persons who are petitioners herein for the offence under Sections 147, 148, 149 and 323 of the Indian Penal Code.
However, though the police submitted supplementary chargesheet under Section 323 and other allied Sections of the Indian Penal Code but the cognizance was taken against these petitioners against whom supplementary charge-sheet has been filed for the offence under Sections 307 and other allied Sections of the Indian Penal Code.
Learned counsel for the petitioners, however, contended that when the police has submitted supplementary charge-sheet against the three petitioners for the offence under Section 323 and other allied Sections of the Indian Penal Code taking into consideration the fact that the Medical Board did not find any injury of fire-arm on the informant and hence it was incumbent on the Magistrate to take cognizance for the offence under Section 323 of the Indian Penal Code only. However, taking into consideration the allegation that all the accused persons were there when there is allegation of firing on the petitioners. However, the cognizance is taken of the offence and not against accused even though taking into consideration the report of the Medical Board that there is no injury on toe even then there is allegation of firing with intention to kill and hence, cognizance under Section 307 of the Indian Penal Code cannot be said to be bad. Under the facts and circumstance of the case I
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do not find any merit in the submission as there are material to suggest so. However, at this stage, this Court cannot go into the question whether the allegation about firing is true or false and the learned Magistrate as well as this Court at the stage of taking cognizance or at the stage of exercising jurisdiction under Section 482 Cr.P.C. cannot go into the falsity or truthfulness of the allegation but the only material whether the allegation made in the complaint and evidence collected during investigation makes out an offence. Hence, taking into consideration the entire facts and circumstances of the case, I do not feel inclined to interfere with the order impugned and hence, the petition is dismissed. (Gopal Prasad, J) Kundan/-
1 issue framed by the court
Whether the High Court should interfere with the order of cognizance passed by the Magistrate despite medical report negating firearm injuries.
3 provisions across 3 enactments
Binod Kumar @ Anjani Kumar
Arvind Kumar
Raj Kumar alias Raj Kumar Singh
The State of Bihar
Vijay Singh alias Vinay Singh
Gopal Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
