Abhishek Kumar vs The State Of Bihar
2023 Latest Caselaw 2130 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                            CRIMINAL REVISION No.117 of 2023
           Arising Out of PS. Case No.-238 Year-2021 Thana- BIDUPUR District- Vaishali
     ======================================================

1. Abhishek Kumar Son of Jai Prakash Singh, R/o Vill.- Chechar, P.S.-

Bidupur, Distt.- Vaishali.

2. Aman Kumar Son of Sanjiv Kumar, R/o Vill.- Chechar, P.S.- Bidupur, Distt.-

Vaishali.

3. Yash Kumar @ Ayush Raj Son of Kumar Santosh Shankar, R/o Vill.- Rajpur, Jaunapur, P.S.- Patori (Mohanpur O.P.), Distt.- Samastipur.

4. Harsh Kumar @ Harsh Chauhan Son of Kumar Santosh Shankar, R/o Vill.-

Rajpur, Jaunapur, P.S.- Patori (Mohanpur O.P.), Distt.- Samastipur.

                                                                    ... ... Petitioner/s
                                         Versus
     The State of Bihar.                                        ... ... Respondent/s

====================================================== Appearance :

For the Petitioner/s : Mr. Dhananjay Kumar, Adv. For the State : Mr. Damodar Prasad Tiwary, APP. For the Informant : Mr. Choubey Jawahar, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT Date : 05-05-2023

Heard learned counsel for the petitioners and

learned A.P.P. for the State as well as learned counsel for the

informant.

The present Cr. Revision Application has been filed

against the order dated 18.08.2022 passed in Bidupur P.S. Case

No. 238 of 2021, by which, learned Additional District &

Sessions Judge-VIth-cum-Special Judge, POCSO, Vaishali at

Hajipur has took cognizance for the offences under Sections 341,

323, 324, 354/34 of the Indian Penal Code read with Section 12

of POCSO Act and issued non-bailable warrant of arrest against

the petitioners.

Patna High Court CR. REV. No.117 of 2023 dt.05-05-2023

Learned counsel for the petitioners submits that

F.I.R. bearing Bidupur P.S. Case No. 238 of 2021 has been

lodged on 05.05.2021 under Sections 341, 323, 325, 376, 379/34

of the Indian Penal Code read with Section 4 of the POCSO Act.

He further submits that in the said case total eight persons were

named accused. He also submits that the order of cognizance is

bad in law due to the reason that in the said cognizance order

nothing whispered on merit, rather it has been passed in a routine

manner. He further submits that it is false to state that on

18.08.2022 the victim was present in the court at the time of

passing cognizance order. Learned counsel submits that the court

taking cognizance has acknowledged that in the statement under

Section 164 of Cr.P.C. victim had only narrated that bite has been

made in the right hand and her left hand was also injured by the

accused persons. He further submits that the present case is the

result of land dispute and counter case has not been

acknowledged by the court. Learned counsel submits that vide

order dated 30.08.2021 charge sheet No. 484 of 2021 has been

submitted under Sections 341, 323, 325/354/34 of the Indian

Penal Code read with Section 4 of POCSO Act. He further

submits that court has added one another section in its

cognizance order and cognizance has been taken against the

petitioners under Sections 341, 323, 324, 354/34 of the Indian Patna High Court CR. REV. No.117 of 2023 dt.05-05-2023

Penal Code read with Section 12 of POCSO Act. He submits that

the petitioners were all along on Police bail and when the court

has taken cognizance and for the purpose of securing the

appearance of petitioners, issuance of non-bailable warrant

directly instead of issuance of summon is bad in law and it is due

to these reasons, he submits that the cognizance order should be

quashed.

Learned counsel for the informant submits that he

had filed separate counter affidavit. In the said counter affidavit,

counsel submits that it is true that F.I.R. has been filed against

eight named accused persons including the petitioners namely

Abhishek Kumar, Aman Kumar, Yash Kumar @ Ayush Raj and

Harsh Kumar @ Harsh Chauhan. With a view to make the things

clear, counsel for the informant narrates the names of accused

persons which are Arun Kumar Singh, Harsh Kumar @ Harsh

Chauhan, Yash Kumar @ Ayush Raj, Raju Singh, Rajiv Kumar,

Sanjeev Kumar, Abhishek Kumar and Aman Kumar. He further

submits that presently there are four accused persons namely

Abhishek Kumar, Aman Kumar, Yash Kumar @ Ayush Raj and

Harsh Kumar @ Harsh Chauhan are before this Hon'ble Court.

Learned counsel submits that the reasons best known to the I.O.,

on the same material three different charge sheets have been

filed. Charge sheet No. 484 of 2021 dated 30.08.2021 was filed Patna High Court CR. REV. No.117 of 2023 dt.05-05-2023

against accused Raju Singh and Sanjeev Kumar Singh. The

second charge sheet No. 85 of 2022 dated 28.02.2022 was filed

against Arun Kumar Singh. Whereas third charge sheet bearing

charge sheet No. 409 of 2022 dated 31.07.2022 was filed against

five accused persons namely Rajiv Kumar, Aman Kumar,

Abhishek Kumar, Harsh Kumar @ Harsh Chauhan and Yash

Kumar @ Ayush Raj. The petitioners are charge sheeted by the

third charge sheet No. 409 of 2022 dated 31.07.2022. Learned

counsel further submits that since Police has submitted three

different charge sheet in this case, it is due to this reason, the

court has no option but to pass three different cognizance orders

on three different dates on the same prosecution material and it is

due to this reason the court has issued show cause also to the I.O.

Learned counsel for the informant submits that

since charge sheet has been filed against the present petitioners

on 31.07.2022, therefore, it is necessary to proceed against those

accused persons for trial, order of cognizance ought to be passed.

According to the counsel for the informant the order impugned is

basically the order of cognizance which has been passed on the

charge sheet filed against five accused persons including the

petitioners. He further submits that under Section 190 (1)(c) of

the Cr.P.C. it is well within the power of the court that at the time

of taking cognizance the court either on the basis of Police report Patna High Court CR. REV. No.117 of 2023 dt.05-05-2023

or on the basis of complaint or on the basis of his own

knowledge may differ from the Police report and take cognizance

that such offence has been committed, therefore, taking

cognizance by the court vide order dated 18.08.2022 is

absolutely in accordance with law and there is no illegality in the

same. Learned counsel further submits that the petitioners after

filing of F.I.R. had obtained the Police bail and thereafter not

secured their appearance before the court. The offence under

which cognizance is taken are non-bailable. It is also argued that

out of eight accused persons, the trial of two accused persons has

been advanced and they have reached at the stage of argument

(counsel for petitioner submits that according to his knowledge it

is going on at the stage of defence witness).

Learned counsel for the State submits that the order

impugned is absolutely legal and completely in accordance with

law due to the reason that it is well within the ambit of the court

that prior to passing order, he may hear the informant on the

point of cognizance. He further submits that the order impugned

may be irregular but it is not illegal as this court is competent to

take cognizance and the irregularity, if any, shall not vitiate the

case in the eyes of law. He also submits that it is well within the

power of the court to issue summon or warrant as the case may

be. He submits that here in the present case, the case is Sessions Patna High Court CR. REV. No.117 of 2023 dt.05-05-2023

triable and directly issuing warrants without issuing summon

cannot be said to be an illegal act and in any view of the matter

this order is fit to sustain.

Upon hearing the parties and going through the

documents, this Court finds that it is very much clear by the

order dated 18.08.2022 that the victim has appeared in the court

on 29.07.2022 itself upon notice and on 18.08.2022 the court has

repeated the version of the earlier date in the first part of the

order, therefore, the construction of the petitioners is not

accepted by the court.

According to Section 190 of Cr.P.C., it is well

within the power of the court that at the time of taking

cognizance the court may differ from the charge sheet and,

therefore, insertion of Section 12 of the POCSO Act in the

cognizance order dated 18.08.2022 is not bad in the eyes of law.

So far as the issuance of warrant without issuance of

summon is concerned, this Court is of the view that from the

very beginning, the petitioners were well aware that they are

accused of cognizable offence and they were on Police bail then

it is their duty to secure their appearance well within time by

taking bail and, hence, in the view of this Court after taking

cognizance issuance of warrant directly without issuance of

summons is not illegal particularly when the trial of two accused Patna High Court CR. REV. No.117 of 2023 dt.05-05-2023

persons of the same F.I.R. has been well advanced and reached at

the stage of argument/ D.W's.

In this view of the matter, this Court finds no

illegality in the order of cognizance dated 18.08.2022 passed in

Bidupur P.S. Case No. 238 of 2021 by learned Additional District

& Sessions Judge-VIth-cum-Special Judge, POCSO, Vaishali at

Hajipur, therefore, the present Cr. Revision Application stands

dismissed.

(Dr. Anshuman, J.) Ritik/-

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