Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 24787 of 2012 ====================================================== 1. Sri Ram Bhagat, Son of Late Faudar Bhagat, Resident of Village- Dhabauli, P.S.- Begusarai Mufassil, District - Begusarai .... .... Petitioner/s Versus 1. The State of Bihar 2. Kamali Bhagat, Son of Late Jhari Bhagat 3. Sri Ram Bhagat, Son of Kamali Bhagat 4. Sudhir Bhagat, Son of Sri Ram Bhagat 5. Mitilesh Bhagat, Son of Sri Ram Bhagat 6. Kaushaliya Devi, Wife of Kamli Bhagat 7. Pershuram Sharma, Son of Ramji Sharma 8. Fullena Rai @ Fulena Singh, Son of Polo Rai 9. Abdhesh Singh, Son of Ram Nertesh Singh 10. Kheshari Singh, Son of Ram Chandra Singh 11. Binod Singh, Son of Nago Singh All Resident of Village - Dhabauli, P.S.- Begusarai Mufassil, District - Begusarai .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 3 03-10-2013 Heard. This is a petition for quashing the order dated 01.02.2012 passed by the 3rd Additional Sessions Judge, Begusarai in Cr. Revision No. 280 of 2010 by which he has set aside the order dated 05.04.2007 passed by Judicial Magistrate-1st Class, Begusarai taking cognizance under Sections 182, 211 and 193 of the Indian Penal Code against the members of opposite parties. The fact in a narrow compass is that a complaint case
Legal Reasoning
Patna High Court Cr.Misc. No.24787 of 2012 (3) dt.03-10-2013 2 was filed by the complainant for the offence under Sections 364, 372, 379, 120-B of the Indian Penal Code alleging therein that the accused persons have kidnapped his sister with intention to sell her for prostitution. However, the police after investigation submitted final form with a recommendation for proceeding against the complainant for offence under Sections 182, 211 and 193 of the Indian Penal Code. However, on the basis of prosecution report by the A.S.I., Amar Prasad Singh cognizance was taken for offence under Sections 182, 211 and 193 of the Indian Penal Code. However, the order taking cognizance was challenged before the revisional court and the Sessions Judge by his order set aside the order taking cognizance on the ground that a complaint under Section 193 and 211 of the Indian Penal Code is required to be filed by the Magistrate and not by police officer in view of Section 195(1) (b) of the Cr.P.C. and hence, the order taking cognizance on the basis of prosecution report by the police officer is not sustainable. With regard to Section 182 of the Indian Penal Code, the learned Sessions Judge ordered that so far order taking cognizance under Section 182 Indian Penal Code is concerned it only contained that the person who gave false information with intent to Patna High Court Cr.Misc. No.24787 of 2012 (3) dt.03-10-2013 3 cause public servant to use his lawful power to the injury of another person. It was found that the revisionists are not the informant and the revisionists are only witness and the police recorded his statement under Section 161 Cr.P.C. and the revisionists neither informed the police nor signed any statement. The Investigating Officer recorded their statement in course of investigation under Section 161 Cr.P.C. and hence, held that it is clear that these revisionists never given any information to the police or to public servant for taking action and hence, no offence under Section 182 of the Indian Penal Code has been committed and hence, allowed the revision setting aside the order taking cognizance. The complainant has challenged the order of Sessions Judge by which the order taking cognizance by the Magistrate has been set aside. Learned counsel for the petitioner, however, conceded that the order passed by the Sessions Judge setting aside the order taking cognizance under Sections 193 and 211 of the Indian Penal Code on the ground that the complaint has not
Legal Reasoning
been filed by the court as enshrined under Section 195(1)(b) of the Cr.P.C. However, it is contended that the cognizance can be taken under Section 182 of the Indian Penal Code on Patna High Court Cr.Misc. No.24787 of 2012 (3) dt.03-10-2013 4 the report of the police under proviso to Section 195(1)(b) Cr.P.C. However, the Sessions Judge has quashed the order on the ground that the revisionists have not lodged the First Information Report and the authority did not proceed against the accused persons on the statement of revisionists. The police proceeded on the information lodged by the informant on the basis of which First Information Report was lodged and since the petitioner is not the person who informed the police or the person lodged the First Information Report or the petitioner is not the person on whose statement police proceeded to lodge First Information Report and proceeded with investigation and hence, offence under Section 182 of the Indian Penal Code is not made out against the petitioner. However, it is submitted by the learned counsel for the petitioner that on the protest the protest petition was taken to be complaint and the complainant and witnesses deposed before the Magistrate on the basis of which cognizance was taken. Hence, the petitioner who deposed in complaint on the basis of which cognizance was taken. However, the cognizance has been taken on the basis of statement on which First Information Report lodged and not on basis of statement Patna High Court Cr.Misc. No.24787 of 2012 (3) dt.03-10-2013 5 made in enquiry under Section 202 Cr.P.C. hence, the argument advanced is not sustainable on fact which was not considered by court below. It is not incumbent on the petitioner to raise the fact which was not considered by the Sessions Judge or by the Magistrate. So far the question raised for consideration is the deposition of the witnesses before the Magistrate in inquiry under Section 202 Cr.P.C. is not the basis for taking cognizance nor was considered by Revisional Court, hence, those materials have rightly not been considered. The petition is dismissed. Kundan/- (Gopal Prasad, J)