IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.155 of 2009
Vijay Singh, son of Bhola Singh, resident of village + P.S.-
Manjhaul, District- Begusarai, at present residing at village-
Basudevpur, P.S.- Mufassil, District- Begusarai.
Versus
1. The State Of Bihar.
2. Subhash Kunwar @ Netaji, son of late Kapildev Kunwar.
3. Rajbali Kunwar, son of Late Sammal Kunwar.
4. Ramanand Kunwar, son of Late Sammal Kunwar.
5. Ram Naresh Kunwar @ Chunchun Kunwar, son of Late
Sammal Kunwar.
6. Mahendra Kunwar, son of Late Krishna Kunwar.
7. Mahesh Kunwar, son of Late Ram Datt Kunwar.
8. Purushottam Kunwar, son of Late Vashishth Kunwar.
9. Subodh Kunwar, son of Lal Kunwar.
10. Shanti Swami, wife of Radha Swami.
11. Radha Swami, son of Late Nandlal Singh.
(All residents of Mohalla-Station Road, P.S.-Begusarai,
District- Begusarai)
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5. 26.08.2011 The informant-petitioner has preferred this revision
application against the order dated 14.01.2009 passed by
the learned Chief Judicial Magistrate, Begusarai in
Begusarai Mufassil P.S.Case No.324/07 by which the
prayer of the petitioner for taking cognizance against the
accused opposite party nos. 2 to 11 has been rejected.
The prosecution case, in brief, is that ten named
accused persons (Opposite Party Nos.2 to 11) came to the
house of the father-in-law of the petitioner and by using
abusive language asked whereabout of Mohan Rai at
which it was said that he was not at his house. The action
of the accused was protested by the family members of the
father-in-law of the informant-petitioner. Thereafter,
Sohan Rai was forcibly taken by the accused in place of
Mohan Rai. It has been further alleged that the accused
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locked the family members of the informant in a room and
fled away taking Sohan Rai in the vehicle. On the
statement of the informant-petitioner, Begusarai Sadar
Mufassil P.S. Case No.324/07 was lodged for the offence
punishable under Sections 447, 342 and 364/34 of the
I.P.C. Subsequently, Section 302 of the I.P.C. was added
against the accused. After investigation, charge-sheet was
submitted against the accused Rahul Rai vide charge-sheet
no.285/08. The case against the accused opposite party
nos. 2 to 11 was found not true and the investigation
against the other accused was kept pending. The learned
Chief Judicial Magistrate took cognizance against the
accused Rahul Rai and the case was transferred to the
court of other Judicial Magistrate for commitment and the
office was directed to split up the record since the
investigation against the co-accused was pending. A
petition was filed on behalf of the petitioner in the court of
learned C.J.M. for taking cognizance against the accused
(opposite party nos. 2 to 11), which has been rejected by
the learned C.J.M after hearing learned counsel for both
the parties. Thereafter, the petitioner has filed this
application against the impugned order dated 14.01.2009.
Heard learned counsel for the petitioner, learned
counsel for the State and the learned counsel for opposite
party no.10. The opposite party nos. 2 to 9 and 11 have not
appeared even after service of notice.
The main contention of the learned counsel for the
petitioner is that there is sufficient material in the case
diary to show that the accused opposite parties have
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committed the offence. The learned C.J.M has also found
that there is material against the accused to have
committed offence, but he discarded their evidence as
there is no eye witness of the alleged occurrence other than
the relatives of the deceased.
The learned counsel for opposite party no.10
submits that cognizance of the offence has already been
taken by the learned C.J.M and the order has been passed
for issuance of notice against the sole accused Rahul Rai.
He has further submitted that the learned C.J.M. has
rightly rejected the petition dated 16.09.2008 filed by the
petitioner for taking cognizance also against the accused
opposite parties. The learned Magistrate has taken the
cognizance against the Rahul Rai and thereafter, he was
not competent to take cognizance against the other accused
as he has no power to review his own order. He has further
submitted that now the accused can only be summoned
under Section 319 of the Cr.P.C.
After hearing the learned counsel for both the
parties and on perusal of the carbon copy of the case diary,
it appears that after investigation, charge-sheet was
submitted against the sole accused Rahul Rai. The case
against the accused opposite parties has been found not
true and the investigation against the other accused was
pending. It further appears that the learned C.J.M has
taken cognizance for the offence punishable under
Sections 364, 302, 201 and 120B of the I.P.C. He has
found a prima facie case against the sole accused Rahul
Rai. It further appears that the petitioner has filed a
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petition dated 16.09.2008 before the learned C.J.M. It
further appears from the carbon copy of the case diary that
there is material against the accused opposite parties to
show that they are also involved in the alleged occurrence.
The learned C.J.M. has also found that there is material
against the accused opposite parties, but he has not taken
cognizance against them as there is no eye witness of the
alleged occurrence other than the relatives of the deceased.
At the stage of taking cognizance, only a prima facie case
is required to be found. It is not required to find out as to
whether the evidence would lead to conviction of the
accused or not. It is also settled principle of law that the
Magistrate can take cognizance of the offence on police
report itself against the accused not named in the final
report. The Magistrate is not required to wait till the stage
of Section 319 Cr.P.C. for taking cognizance against the
accused not named as accused in charge-sheet. Reliance
may be placed on a decision in the case of Uma Shankar
Singh Versus State of Bihar and anr. reported in 2010
AIR SCW 5868.
Considering the facts and circumstances stated
above, in my opinion, the impugned order is not fit to be
sustained. The impugned order is set aside. The matter is
remanded back to the learned Chief Judicial Magistrate,
Begusarai for considering the case in accordance with law.
In the result, this revision application is allowed.
V.K. Pandey ( Amaresh Kumar Lal, J.)