IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.5424 of 2008
Chandrika Pandit
-------------- Petitioner
Versus
1. State of Bihar
2. Suresh Pandit
---------------- Opposite Parties
-------
For the petitioner: Mr. Umesh Kumar Verma
For the informant: Mr. Rudal Singh
For the State: Mr. Sunil Kumar Pandey, APP
*******
8 21-9-2011 Heard learned counsel for the parties.
This application has been filed for
quashing the order dated 29.11.2007 passed by
Chief Judicial Magistrate, Nalanda at
Biharsharif in Bihar P.S. Case No. 258 of 2007
arising out of Complaint Case No. 829© of 2007
in which cognizance has been taken under
sections 364/120(B) of the Indian Penal Code
against the petitioner.
Informant’s son is shown kidnapped in
the case. F.I.R. was lodged, matter investigated
by the Investigating Officer and final form
submitted in the case exonerating petitioner
from the liability, differing the same (opinion
of the Investigating Officer) cognizance is
taken in the case.
It is admitted to the parties also that
it is well within competence of the Magistrate
to take cognizance differing the opinion of
2
investigating agency but in the instant case,
informant and witnesses to corroborate
prosecution case appeared and stated false
implication of petitioner and reason for their
doing so is given by them in their statement
under section 161 Cr.P.C. that Satish Kumar, Ram
Deo Pandit, Upendra Chouhan, Shambhu Pandit took
informant’s son in Rajgir Mela and got him
disappeared. In that connection when informant
was talking this petitioner on telephone, he was
not replying in clear word. Reason for talk to
this petitioner is also given that petitioner’s
house was in side of house of Ram Deo Pandit
that was reaction only. Further statement of
informant is recorded in paraghraph-4 of the
case diary. Other witnesses are examined in
paragraphs-5 and 9 of the case diary.
Only making of allegation cannot be
taken for constituting prima facie case even for
cognizance unless that is corroborated by
witnesses, number may be minimized to one. Thus,
it is clear that material is lacking in the case
for differing opinion reached by the
Investigating Officer in the instant case. So
cognizance taken in the case is illegal and
without jurisdiction.
3
Accordingly, this application is allowed
and the order taking cognizance against this
petitioner in Bihar P.S. Case No. 258 of 2007
arising out of 829(C) of 2007 is hereby quashed.
( Mandhata Singh, J.)
AI/A.F.R.