Patna High Court - Orders
Ashok Kumar @ Jitendra Prasad & Ors vs The State Of Bihar & Anr on 2 April, 2010
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr. Misc. No.57618 of 2007
1. ASHOK KUMAR @ JITENDRA PRASAD, S/O RAMEHSWAR
MAHTO
2. RAMESHWAR MAHTO, S/O MAHAVIR MAHATO
3. JANAKI DEVI, W/O REMAWHAR MAHTO
4. MUNNI DEVI, D/O RAMESHWAR MAHTO
5. BIRENDAR KUMAR, S/O REMESHWAR MAHTO
.. PETITIONERS
Versus
1. THE STATE OF BIHAR
2. RAJENDRA PRASAD, S/O GOVING MAHATO
.. OPPOSITE PARTIES
****
/2/ 02.04.2010 Heard the counsel for the parties.
2. This petition has been filed against the order, dated 14.11.2007, by which a cognizance has been taken against the petitioners by the Sub Divisional Judicial Magistrate, Nawada, in P.C. Case No. 1133 of 1999/1668 of 2006 for offence under Section 304B of the Indian Penal Code. The learned counsel for the petitioners submits that earlier complaint was filed which was sent for institution of the first information report which resulted in the submission of the final form which was dismissed under Section 203 of the Indian Penal Code. Further, it has been contended that the order dismissing a complaint under Section 203 of the Indian Penal Code a revision was filed before the High Court, but, the said revision application 2 was allowed and the matter was remitted for examining the witnesses. The learned counsel for the petitioners contended that on two earlier occasions the prosecution failed. He further contended that the order was not maintainable neither the reason has not been assigned for taking cognizance. It has further been contended that one of the witnesses examined during enquiry who is said to have deposed supporting the case, but, the same witness after filing of protest has not deposed in the case and there has been impersonation and, hence, contended that the order taking cognizance is bad on this ground. However, the final form was submitted or even a complaint was dismissed under Section 203 of the Criminal Procedure Code can not be a ground for rejecting the order taking cognizance which has been passed in pursuance of the order of the High Court for fresh enquiry after setting aside the order. However, it has been contended in the impugned order neither fact nor the reason has been assigned by the learned Magistrate in the impugned order issuing process. However, in several cases the Supreme Court has held neither material fact nor reason is required to be given by the learned lower Court at this stage, i.e., learned Court is not required to reiterate the facts or give reason at this stage, but, it is 3 only the opinion of the Magistrate, which shall prevail. However, it has further been alleged that one of the witnesses, whose statement has been relied upon, alleged to have been impersonated. At this stage this fact can not be looked into by this Court as it requires evidence and enquiry.
3. Hence, taking into consideration the entire fact and circumstances I do not find any illegality and impropriety in the impugned order. However, the police may raise issue at the subsequent stage.
4. With these observations and directions, this application is dismissed.
( Gopal Prasad, J. ) S.A.