Patna High Court
Krishna Mangal Singh vs State Of Bihar on 25 March, 2010
Author: Rakesh Kumar
Bench: Rakesh Kumar
Criminal Miscellaneous No.23314 OF 1998
In the matter of an application under Section 482 of the
Code of Criminal Procedure
_________
Krishna Mangal Singh, Son of Sri Rajendra Singh, resident of
Village- Fatehpur, Police Station & District- Sheohar
------------ Petitioner
Versus
1. THE STATE OF BIHAR
2. Jagannath Singh, Son of Late Bilat Singh, resident of
Village-Fatehpur, P.S. & District-Sheohar
--------------- Opp.Parties.
----------
PRESENT
THE HON'BLE SHRI JUSTICE RAKESH KUMAR
Rakesh Kumar,J No one appears on behalf of the petitioner either to press
this application or to make a prayer for adjournment.
2. The sole petitioner has prayed for quashing of the
order dated 20.7.1998, whereby the learned Sub Divisional
Judicial Magistrate, Sheohar at Sitamarhi had taken cognizance
for offences under Sections 182 and 211 of the Indian Penal Code
in Case No.C-2/3/92, Tr.No.168/98.
3. The short facts of the case is that the petitioner
was the informant in Sheohar P.S. Case No.16 of 1988. In the said
F.I.R. the petitioner had alleged that Opp.Party no.2 , Jagannath
Singh had served some drink , which was containing poison and
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after consuming the said drink , his younger brother, namely,
Chitranjan Singh died. On the basis of said information, an F.I.R.
i.e. Sheohar P.S. Case No.16 of 1988 was registered for offences
under Sections 428 and 307 of the Indian Penal Code. While
investigation was going on, the petitioner apprehending that the
police may not conduct fair investigation filed a protest petition
before the court of the learned Magistrate . Finally, the police
submitted final form in the said case and submitted a report to
prosecute the petitioner for an offence under Sections 182 and 211
of the Indian Penal Code. The learned Magistrate accepted the
final form and transferred the protest petition of this petitioner to
the complaint side.However, due to non appearance /pairvi made
by the complainant on 9.4.1991 the complaint petition stood
dismissed. Subsequently, the petitioner filed another complaint,
which was registered as Complaint Case No.C-1/4 of 1991. In the
said complaint, Opp.Party no.2 was arrayed as accused. The
complainant/petitioner was examined on S.A. and in support of
Complaint , four witnesses were also examined and thereafter the
learned Chief Judicial Magistrate, Sheohar at Sitamarhi by his
order dated 19.8.1993 took cognizance of offences under Sections
327 and 328 of the Indian Penal Code against Opp.Party no.2 ,
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Jagdish Singh.
4. From the petition it appears that against the
order of cognizance, Opp.Party no.2 filed a quashing application
vide Cr.Misc.No. 13999 of 1993 before this Court. In paragraph
12 of the petition, it has been stated that the said petition was
pending before this Court.
5. On the basis of the report dated 26.9.1988 of
the Officer Incharge of Sheohar Police Station, the learned Chief
Judicial Magistrate, Sitamarhi issued notice to the petitioner and,
thereafter, as stated in the present petition, the petitioner filed a
show cause stating therein that in this complaint regarding the
allegation of poisoning the court had already taken cognizance .
However, the learned Sub Divisional Judicial Magistrate, Sheohar
at Sitamarhi had taken cognizance by the impugned order dated
20.7.1998 for offence under Section 182 and 211 of the Indian
Penal Code against the petitioner.
6. Since on the same allegation, the Magistrate
had taken cognizance for the offences, it is not appropriate for the
Sub Divisional Judicial Magistrate to proceed with the report
submitted by the police for initiation of proceeding under Sections
182 and 211 of the Indian Penal Code against this petitioner.
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Secondly, the alleged offence had taken place in the month of
April, 1988 and after lapse of about 10 years, it was not desirable
for the learned Sub Divisional Judicial Magistrate to take
cognizance of the offence, particularly under Sections 182 and 211
of the Indian Penal Code. It is made clear that in the F.I.R.,i.e.
Sheohar P.S. Case No.16 of 1988, the petitioner had made an
allegation that in the night of 10.4.1988 , his younger brother was
killed by Opp.Party no.2 by way of administering poison in drink.
The learned Magistrate had obviously taken cognizance on the
report of the police after lapse of more than 10 years from the date
of occurrence.
7. The petitioner after the order of cognizance
approached this Court by filing the present petition and by an
order dated 8.12.1998, this Court had directed for stay of the
further proceeding in Trial No.168/98. As per order of this Court,
Jagannath Singh was added as Opp.Party no.2 in this application
and thereafter notice was issued. Despite valid service of notice,
Opp.Party no.2 did not appear and, accordingly, on 23.6.1999, this
Court admitted the present petition for hearing and directed that
till final disposal of the case, interim order passed on 8.12.1998
will continue. Even at the time of hearing none appeared on behalf
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of Opp.Party no.2 as well as none appeared on behalf of the
petitioner. One of the reasons for quashing of the order of
cognizance in the present case is that the order of cognizance was
passed on 20.7.1998 for the offence, which was alleged to be
committed in the year 1988. Accordingly, after expiry of 22 years
from the date of occurrence it would not be advisable to direct the
petitioner to appear before the court below for facing the trial for
the offences committed under Sections 182 and 211 of the Indian
Penal Code.
8. In view of the facts and circumstances, as
indicated above, I am of the view that the order of cognizance
suffers with glaring defect and illegality and liable to be set aside.
9. Accordingly, the order of cognizance dated
20.7.1998passed in C-2/3/92, Tr.No.168 /98 is hereby set aside and the petition stands allowed.
( Rakesh Kumar, J) Patna High Court,Patna Dated: the 25th March,2010 Nawal Kishore Singh/N.A.F.R.