Patna High Court
Ram Agya Singh @ Ram Adya Singh And Ors vs State Of Bihar And Anr on 13 February, 2025
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.53947 of 2015
Arising Out of PS. Case No.-175 Year-2013 Thana- BIHTA District- Patna
======================================================
1. Ram Agya Singh @ Ram Adya Singh, S/o late Deo Lal Singh R/o Village-
Nathupur, P.S.- Bihta, District -Patna.
2. Nanda Yadav@Nand Kishore Yadav, S/o Jagdish Yadav
3. Jagdish Yadav S/o Bali Yadav; petitioner No. 2 and 3 are R/o Villge-
Doghara tola, Chhilka par, P.S.- Bihta, District- Patna.
... ... Petitioner/s
Versus
1. State of Bihar
2. Ram Pravesh Yadav, S/o late Chandrajeet Yadav, R/o Villge- Doghara Ka
Tola, Chhilka Par, P.S.- Bihta, District Patna.
... ... Opposite Party/s
======================================================
with
CRIMINAL MISCELLANEOUS No. 55695 of 2015
Arising Out of PS. Case No.-175 Year-2013 Thana- BIHTA District- Patna
======================================================
1. Sidheshwar Prasad @ Bauanand @ Baunand Yadav, S/o Bali Yadav, R/o
Village- Doghara Tola, Chhilka Par, P.S.- Bihta, District- Patna.
2. Gudu Kumar @ Guddu Yadav @ Guddu Raj, S/o Munilal Yadav, R/o
Village -Yogipur, P.S.- Bihta, District- Patna.
... ... Petitioner/s
Versus
1. State of Bihar
2. Ram Pravesh Yadav, S/o Late Chandrajeet Yadav, R/o Village- Doghra Ka
Tola, Chhilka Par, P.O.- Doghra, P.S.- Bihta, District- Patna.
... ... Opposite Party/s
======================================================
Appearance :
(In CRIMINAL MISCELLANEOUS No. 53947 of 2015)
For the Petitioner/s : Mr. Sanjay Kumar, Adv.
For the State : Mr. Binod Kumar, No. 3, APP
For the O.P. No.2 : Mr. Rajendra Narain, Sr. Adv.
Mr. Anil Kumar, Adv.
(In CRIMINAL MISCELLANEOUS No. 55695 of 2015)
For the Petitioner/s : Mr. Sanjay Kumar, Adv.
For the State : Mr. Ram Sumiran Roy, APP
For the O.P. No.2 : Mr. Rajendra Narain, Sr. Adv.
Mr. Anil Kumar, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
2/19
CAV JUDGMENT
Date : 13-02-2025
Heard Mr. Sanjay Kumar, learned counsel
appearing for the petitioners, Mr. Binod Kumar No. 3 and Mr.
Ram Sumiran Roy, learned APPs appearing for the State in Cr.
Misc. No. 53947/2015 and Cr. Misc. No. 55695/2015
respectively and Mr. Rajendra Narain, learned senior counsel
appearing for the O.P. No. 2 in both the petitions.
2. Both the petitions have been filed under section
482 of the Code of Criminal Procedure (in short 'Cr.P.C.') with
a prayer to quash the order dated 07.10.2015 passed by learned
Additional Chief Judicial Magistrate, Danapur, in connection
with Bihta P.S. Case No. 175/2013 (G.R. No. 969/2013),
whereby and whereunder the learned Magistrate has taken
cognizance of the offences under sections 302 and 201/34 of
IPC against the petitioners and others. The petitioner, namely,
Ram Agya Singh @ Ram Adya Singh (petitioner No. 1 of Cr.
Misc. No. 53947/2015) died after filing his petition and by order
dated 16.05.2024, the criminal Miscellaneous No. 53947 of
2015 was directed to run in respect of the rest petitioners only.
3. Mr. Sanjay Kumar, learned counsel for the
petitioners submits that the informant's youngest son, namely,
Arvind Kumar, aged about 16 years, who used to load sand in
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
the trucks with the help of JCB machine died due to an accident.
When he was doing his labour work, the bucket of the JCB
machines hit him on his head and consequently, he died and due
to fear, JCB operators and munshi of sand ghat (Balu ghat)
disposed of his body on the bank of Sone river and there were
two JCB operators, one munshi, four other persons including the
petitioners and three other persons of Doghara Tola village at
Balu Ghat when the alleged occurrence of accident took place.
Admittedly, the informant is not an eyewitness of the occurrence
and according to him when he reached at the Balu Ghat, he did
not find his son and at that time, JCB machines were also not
working and he suspected that his son had been killed by the
petitioners and others after hatching a conspiracy and the dead
body had been disappeared by them and accordingly, the case
was lodged mainly on the basis of suspicion. During
investigation, no one claimed to have seen the occurrence as
alleged by the informant and the investigating officer
apprehended the JCB machine operators, namely, Dadan
Choudhary, and Guddu Kumar (petitioner No.2 of Cr. Misc. No.
55695/2015) and got their statements recorded and came to
know that the informant's son died of an accident happened due
to JCB bucket's hitting to the head of the deceased and
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
thereafter, the investigating officer made his best effort with the
help of dog squad to trace out the dead body or his remains but
on account of devastating flood in Sone river, the dead body
could not have been found out and it was presumed that the
dead body might have been swift away in the flood. It is further
submitted that the informant filed Cr.WJC No. 70/2014 in the
form of habeas corpus for the latches of the police official in
tracing out the victim or his body then at the direction given by
this Court in said Cr.WJC, the Polygraphy Test of JCB operator
and munshi was done and even then the factum of accidental
death of informant's son came out only and after the
investigation, the concerned police officer submitted
chargesheet under sections 304A, 287, 281 and 120B of IPC
only against three named accused persons including the
petitioner Guddu Kumar and the investigation was kept pending
in respect of the petitioners, Ram Agya Singh @ Ram Adya
Singh (now deceased petitioner), Nanda Yadav @ Nand Kishore
Yadav, Jagdish Yadav and Sidheshwar Prasad @ Baunand
Yadav. At the time of taking cognizance, the learned Magistrate
did not take into consideration the fact that in respect of all the
petitioners except the petitioner Guddu Kumar, there was no
police report either in the form of chargesheet or final report and
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
the cognizance was taken despite the investigation in respect of
them being pending before the police, though the informant had
filed a protest petition but upon that, the Magistrate did not
proceed. Learned counsel has placed reliance upon the judgment
of the Hon'ble Apex Court passed in the case of Abhinandan
Jha & Ors. vs. Dinesh Mishra reported in AIR 1968 SC 117
and the paragraph Nos, 16, 17, 20 and 21 upon which reliance
has been placed are being reproduced as under : -
"16. In this connection, the provisions of
Section 169 of the Code, are relevant. They specifically
provide that even though, on investigation, a police officer,
or other investigating officer, is of the opinion that there is
no case for proceeding against the accused, he is bound,
while releasing the accused, to take a bond from him to
appear, if and when required, before a Magistrate. This
provision is obviously to meet a contingency of the
Magistrate, when he considers the report of the
investigating officer, and judicially takes a view different
from the police.
17. We have to approach the question,
arising for consideration in this case, in the light of the
circumstances pointed out above. We have already referred
to the scheme of Chapter XIV, as well as the observations of
this Court in Rishbud and Inder Singh case [(1955) 1 SCR
1150] that the formation of the opinion as to whether or not
there is a case to place the accused on trial before a
Magistrate, is left to the officer in-charge of the police
station. There is no express power, so far as we can see,
which gives jurisdiction to pass an order of the nature
under attack nor can any such powers be implied. There is
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
certainly no obligation, on the Magistrate, to accept the
report, if he does not agree with the opinion formed by the
police. Under those circumstances, if he still suspects that
an offence has been committed, he is entitled,
notwithstanding the opinion of the police, to take
cognizance, under Section 190(1)(c) of the Code. That
provision, in our opinion, is obviously intended to secure
that offences may not go unpunished and justice may be
invoked even where persons individually aggrieved are
unwilling or unable to prosecute, or the police, either
wantonly or through bona fide error, fail to submit a report,
setting out the facts constituting the offence. Therefore, a
very wide power is conferred on the Magistrate to take
cognizance of an offence, not only when he receives
information about the commission of an offence from a third
person, but also where he has knowledge or even suspicion
that the offence has been committed. It is open to the
Magistrate to take cognizance of the offence, under Section
190(1)(c), on the ground that, after having due regard to the
final report and the police records placed before him, he
has reason to suspect that an offence has been committed.
Therefore, these circumstances will also clearly negative
the power of a Magistrate to call for a charge-sheet from
the police, when they have submitted a final report. The
entire scheme of Chapter XIV clearly indicates that the
formation of the opinion, as to whether or not there is a
case to place the accused for trial, is that of the officer in-
charge of the police station and that opinion determines
whether the report is to be under Section 170, being a
'charge-sheet', or under Section 169, 'a final report'. It is
no doubt open to the Magistrate, as we have already
pointed out, to accept or disagree with the opinion of the
police and, if he disagrees, he is entitled to adopt any one of
the courses indicated by us. But he cannot direct the police
to submit a charge-sheet, because, the submission of the
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
report depends upon the opinion formed by the police, and
not on the opinion of the Magistrate. The Magistrate cannot
compel the police to form a particular opinion, on the
investigation, and to submit a report, according to such
opinion. Thai will be really encroaching on the sphere of
the police and compelling the police to form an opinion so
as to accord with the decision of the Magistrate and send a
report either under Section 169, or under Section 170,
depending upon the nature of the decision. Such a function
has been left to the police under the Code.
20. Therefore, to conclude, there is no power,
expressly or impliedly conferred, under the Code, on a
Magistrate to call upon the police to submit a charge-sheet,
when they have sent a report under Section 169 of the Code,
that there is no case made out for sending up an accused for
trial.
21. In these two appeals, one other fact will
have to be taken note of. It is not very clear as to whether
the Magistrate, in each of these cases, has chosen to treat
the protest petitions, filed by the respective respondents, as
complaints, because, we do not find that the Magistrate has
adopted the suitable procedure indicated in the Code, when
he takes cognizance of an offence, on a complaint made to
him. Therefore, while holding that the orders of the
Magistrate, in each of these cases, directing the police to
file charge-sheets, is without jurisdiction, we make it clear
that it is open to the Magistrate to treat the respective
protest petitions, as complaints, and take further
proceedings, according to law, and, in the light of the views
expressed by us, in this judgment."
4. On the other hand, learned senior counsel
appearing for the O.P. No. 2 has vehemently opposed these
petitions and submits that the trial of the petitioners has started
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
and after framing of charges upon them, two prosecution
witnesses have been examined, so, in such a situation, the
petitions have become infructuous. He further submits that there
is ample evidence against the petitioners in the case diary to
proceed with the alleged offences of murder and disappearing
the dead body of the deceased (informant's son). The
investigating officer and other police officials did not conduct
the investigation in proper manner, so, the informant had to file
Cr.WJC No. 70/2014 in which several directions were issued
and only then, further investigation was done but even then, the
dead body of the deceased could not have been recovered.
During investigation, the accused persons including the
petitioners were found absconding and their conduct remained
suspicious completely. The learned Magistrate did not make an
error in taking cognizance against whom the investigation was
kept pending at that time, as it is a settled law that on the basis
of partial chargesheet, a Magistrate can take cognizance of the
offences and summon the accused against whom there is
sufficient material. In support of these submissions, learned
senior counsel has placed reliance upon the three judgments of
the Hon'ble Apex Court passed in following cases : -
(i) Nahar Singh vs. State of Uttar Pradesh &
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
Another reported in 2022 (5) SCC 295. The relevant paragraph
Nos. '29' and '30' upon which reliance has been placed are
being reproduced as under : -
"29. In Raghubans Dubey [Raghubans
Dubey v. State of Bihar, (1967) 2 SCR 423 : AIR 1967 SC
1167] , SWIL Ltd. [SWIL Ltd. v. State of Delhi, (2001) 6
SCC 670 : 2001 SCC (Cri) 1205] and Dharam Pal
[Dharam Pal v. State of Haryana, (2014) 3 SCC 306 :
(2014) 2 SCC (Cri) 159] , the power or jurisdiction of the
court or Magistrate taking cognizance of an offence on the
basis of a police report to summon an accused not named in
the police report, before commitment has been analysed.
The uniform view on this point, irrespective of the fact as to
whether cognizance is taken by the Magistrate under
Section 190 of the Code or jurisdiction exercised by the
Court of Session under Section 193 thereof is that the
aforesaid judicial authorities would not have to wait till the
case reaches the stage when jurisdiction under Section 319
of the Code is capable of being exercised for summoning a
person as accused but not named as such in police report.
We have already expressed our opinion that such
jurisdiction to issue summons can be exercised even in
respect of a person whose name may not feature at all in the
police report, whether as accused or in Column (2) thereof
if the Magistrate is satisfied that there are materials on
record which would reveal prima facie his involvement in
the offence. None of the authorities limit or restrict the
power or jurisdiction of the Magistrate or Court of Session
in summoning an accused upon taking cognizance, whose
name may not feature in the FIR or police report.
30. In the present case, the name of the
accused had transpired from the statement made by the
victim under Section 164 of the Code. In Dharam Pal
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
[Dharam Pal v. State of Haryana, (2014) 3 SCC 306 :
(2014) 2 SCC (Cri) 159] , it has been laid down in clear
terms that in the event the Magistrate disagrees with the
police report, he may act on the basis of a protest petition
that may be filed and commit the case to the Court of
Session. This power of the Magistrate is not exercisable
only in respect of persons whose names appear in
Column (2) of the charge-sheet, apart from those who are
arraigned as accused in the police report. In the subject
proceeding, the Magistrate acted on the basis of an
independent application filed by the de facto complainant.
If there are materials before the Magistrate showing
complicity of persons other than those arraigned as
accused or named in Column (2) of the police report in
commission of an offence, the Magistrate at that stage
could summon such persons as well upon taking cognizance
of the offence. As we have already discussed, this was the
view of this Court in Raghubans Dubey [Raghubans Dubey
v. State of Bihar, (1967) 2 SCR 423 : AIR 1967 SC 1167] .
Though this judgment dealt with the provisions of the 1898
Code, this authority was followed in Kishun Singh [Kishun
Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri)
470] . For summoning persons upon taking cognizance of
an offence, the Magistrate has to examine the materials
available before him for coming to the conclusion that
apart from those sent up by the police some other persons
are involved in the offence. These materials need not
remain confined to the police report, charge-sheet or the
FIR. A statement made under Section 164 of the Code could
also be considered for such purpose."
(ii) State of Gujarat vs. Afroz Mohammed
Hasanfatta reported in AIR 2019 SC 2499. The relevant
paragraph Nos. 15, 22 and 51 upon which reliance has been
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
placed are being reproduced as under : -
"15. It is well-settled that at the stage of
issuing process, the Magistrate is mainly concerned with
the allegations made in the complaint or the evidence led in
support of the same and the Magistrate is only to be
satisfied that there are sufficient grounds for proceeding
against the accused. It is fairly well-settled that when
issuing summons, the Magistrate need not explicitly state
the reasons for his satisfaction that there are sufficient
grounds for proceeding against the accused. Reliance was
placed upon Bhushan Kumar and another v. State (NCT of
Delhi) and another, (2012) 5 SCC 424 : (AIR 2012 SC
1747, Paras 7, 9 and 10) wherein it was held as under :
"11. In Chief Enforcement Officer v. Videocon
International Ltd. [Chief Enforcement Officer v. Videocon
International Ltd., (2008) 2 SCC 492 : (SCC p. 499, para
19) : (AIR 2008 SC 1213 at P.1216, Para 12) the expression
"cognizance" was explained by this Court as "it merely
means 'become aware of' and when used with reference to
a court or a Judge, it connotes 'to take notice of judicially'.
It indicates the point when a court or a Magistrate takes
judicial notice of an offence with a view to initiating
proceedings in respect of such offence said to have been
committed by someone." It is entirely a different thing from
initiation of proceedings; rather it is the condition
precedent to the initiation of proceedings by the Magistrate
or the Judge. Cognizance is taken of cases and not of
persons. Under Section 190 of the Code, it is the
application of judicial mind to the averments in the
complaint that constitutes cognizance. At this stage, the
Magistrate has to be satisfied whether there is sufficient
ground for proceeding and not whether there is sufficient
ground for conviction. Whether the evidence is adequate for
supporting the conviction can be determined only at the
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
trial and not at the stage of enquiry. If there is sufficient
ground for proceeding then the Magistrate is empowered
for issuance of process under Section 204 of the Code.
12. A "summons" is a process issued by a court
calling upon a person to appear before a Magistrate. It is
used for the purpose of notifying an individual of his legal
obligation to appear before the Magistrate as a response to
violation of law. In other words, the summons will
announce to the person to whom it is directed that a legal
proceeding has been started against that person and the
date and time on which the person must appear in court. A
person who is summoned is legally bound to appear before
the court on the given date and time. Wilful disobedience is
liable to be punished under Section 174 IPC. It is a ground
for contempt of court.
13. Section 204 of the Code does not mandate the
Magistrate to explicitly state the reasons for issuance of
summons. It clearly states that if in the opinion of a
Magistrate taking cognizance of an offence, there is
sufficient ground for proceeding, then the summons may be
issued. This section mandates the Magistrate to form an
opinion as to whether there exists a sufficient ground for
summons to be issued but it is nowhere mentioned in the
section that the explicit narration of the same is mandatory,
meaning thereby that it is not a prerequisite for deciding the
validity of the summons issued."
22. Insofar as taking cognizance based on the police report,
the Magistrate has the advantage of the charge sheet,
statement of witnesses and other evidence collected by the
police during the investigation. Investigating officer/SHO
collects the necessary evidence during the investigation
conducted in compliance with the provisions of the
Criminal Procedure Code and in accordance with the rules
of investigation. Evidence and materials so collected are
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
sifted at the level of the investigating officer and thereafter,
charge-sheet was filed. In appropriate cases, opinion of the
Public Prosecutor is also obtained before filing the charge-
sheet. The court thus has the advantage of the police report
along with the materials placed before it by the police.
Under Section 190(1)(b) CrPC, where the Magistrate has
taken cognizance of an offence upon a police report and the
Magistrate is satisfied that there is sufficient ground for
proceeding, the Magistrate directs issuance of process. In
case of taking cognizance of an offence based upon the
police report, the Magistrate is not required to record
reasons for issuing the process. In cases instituted on a
police report, the Magistrate is only required to pass an
order issuing summons to the accused. Such an order of
issuing summons to the accused is based upon subject to
satisfaction of the Magistrate considering the police report
and other documents and satisfying himself that there is
sufficient ground for proceeding against the accused. In a
case based upon the police report, at the stage of issuing
the summons to the accused, the Magistrate is not required
to record any reason. In case, if the charge-sheet is barred
by law or where there is lack of jurisdiction or when the
charge-sheet is rejected or not taken on file, then the
Magistrate is required to record his reasons for rejection of
the charge-sheet and for not taking it on file. In the present
case, cognizance of the offence has been taken by taking
into consideration the charge-sheet filed by the police for
the offence under Sections 420, 465, 467, 468, 471, 477-A
and 120-B IPC, the order for issuance of process without
explicitly recording reasons for its satisfaction for issue of
process does not suffer from any illegality.
51. In our view, the learned Single Judge ought not to have
gone into the merits of the matter when the matter is in
nascent stage. When the prosecution relies upon the
materials, strict standard of proof is not to be applied at the
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
stage of issuance of summons nor to examine the probable
defence which the accused may take. All that the court is
required to do is to satisfy itself as to whether there are
sufficient grounds for proceeding. The learned Single Judge
committed a serious error in going into the merits and
demerits of the case and the impugned order is liable to be
set aside.
(iii) Bhushan Kumar & Another vs. State (NCT
of Delhi) & Another reported in (2012) 5 SCC 424. The
relevant paragraph Nos. 13 and 14 upon which reliance has been
placed are being reproduced as under : -
"13. Section 204 of the Code does not
mandate the Magistrate to explicitly state the reasons for
issuance of summons. It clearly states that if in the opinion
of a Magistrate taking cognizance of an offence, there is
sufficient ground for proceeding, then the summons may be
issued. This section mandates the Magistrate to form an
opinion as to whether there exists a sufficient ground for
summons to be issued but it is nowhere mentioned in the
section that the explicit narration of the same is mandatory,
meaning thereby that it is not a prerequisite for deciding the
validity of the summons issued.
14. Time and again it has been stated by this
Court that the summoning order under Section 204 of the
Code requires no explicit reasons to be stated because it is
imperative that the Magistrate must have taken notice of the
accusations and applied his mind to the allegations made in
the police report and the materials filed therewith."
5. Heard both the sides and perused the FIR, case
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
diary and other relevant materials. The instant matter relates to
unnatural death of informant's son. There are some
circumstances which are in favour of prosecution's allegation.
Firstly, the conduct of the accused including the petitioners
remained suspicious after the death of the informant's son,
secondly, at the Balu Ghat (sand area) at where the informant's
son used to work for loading the trucks with sand with the help
of JCB machines, the dead body of the victim was not found
when the informant reached at that place and the accused
persons, who were present there at that time, did not give
satisfactory answer to the informant and JCB machine was also
not working at that time. If the death of the deceased had taken
place due to an accident then the informant ought to have been
informed immediately by the accused including the petitioners,
who were involved in sand loading work, about the commission
of the accident and during investigation, the investigating officer
did not find any sign of accident. Though, no one among the
persons, who were examined by the Investigating Officer,
claimed to have seen the occurrence of killing which has been
alleged by the informant but it is also admitted position that
none of them claimed to have seen the occurrence of accident as
pleaded by the accused. These circumstances are sufficient to
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
justify the informant's suspicion about a criminal wrong having
been committed with his son by the accused persons and the
investigation remained faulty and the investigating officer did
not investigate properly at the initial stage so the informant had
to approach this Court by filing Cr.WJC No. 70 of 2014 but
even then, the dead body of the victim could not have been
recovered. These materials are sufficient to justify the
cognizance of the offences under sections 302 and 201 of IPC in
respect of the petitioner Gudu Kumar @ Guddu Yadav, against
him the investigation had been completed before taking the
cognizance. So far as the legality of the impugned order to the
extent of summoning other petitioners for the alleged offences,
of which cognizance has been taken, is concerned the same
appears to be not in accordance with law as against them, the
investigation was kept pending by the investigating officer and
the same was running when the impugned order taking
cognizance against them was passed. The provisions of section
190(1) of Cr.P.C. deal with the Magistrate's power of taking
cognizance of an offence. The Magistrate can take cognizance
of an offence either upon receiving a complaint of facts which
constitute such offence or upon a police report of such facts or
upon an information received from any person other than a
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
police officer or upon his own knowledge that such offence has
been committed. Though the informant had filed a protest
petition before passing the order of cognizance and the same
was pending when the impugned order was passed but
admittedly, the concerned Magistrate did not proceed on that
protest petition and it is also an admitted position that there was
no police report before the Judicial Magistrate in respect of the
petitioners, namely, Nanda Yadav @ Nand Kishore Yadav,
Jagdish Yadav and Sidheshwar Prasad @ Baunand Yadav as
against them, the investigation was running and clause (c) of
section 190(1) of Cr.P.C. deals with different situation which is
not applicable in the present matter. The principle laid down by
the Hon'ble Apex Court in the case of Abhinandan Jha (supra)
upon which reliance has been placed by the petitioners' counsel
is not relevant in the present matter as it simply deals with the
Magistrate's power upon receiving a police report while the
present matter relates to the propriety of cognizance order which
has been challenged by the petitioners so the observations made
by the Hon'ble Apex Court in the said case do not help the
petitioners. Similarly, the principles laid down by the Hon'ble
Apex Court in the above-mentioned cases of which reference
has been given by O.P. No. 2's counsel are also not relevant to
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
deal with the issues involved in the present matter. Accordingly,
I am of the view that the order impugned summoning the
petitioners Nanda Yadav @ Nand Kishore Yadav, Jagdish Yadav
and Sidheshwar Prasad @ Baunand Yadav is technically bad as
when the cognizance of the offences was taken neither there was
police report in respect of them nor the Magistrate proceeded on
the protest petition against them, however, the materials
available in the case diary are the same as that of available
against the petitioner Gudu Kumar @ Guddu Yadav who had
been chargesheeted before passing the order impugned, so, in
view of this position as well as deeming the magistrate's act as
to summoning the above petitioners before the completion of
investigation against them mere an irregularity in view of the
provisions of section 460 of Cr.P.C. which in my opinion does
not vitiate the further proceeding of the trial against the said
petitioners which started against them after the cognizance as
there are sufficient materials in the case diary as discussed
above to proceed with the alleged offences against them also.
Moreover, the trial of the petitioners has started and after
framing of the charges upon them, two prosecution witnesses
have been examined as stated by informant's counsel, so, in
such a situation, it will not be proper and justifiable to set aside
Patna High Court CR. MISC. No.53947 of 2015 dt.13-02-2025
the cognizance order against above-mentioned petitioners
merely on account of above irregularity as there are sufficient
circumstances and materials to justify the cognizance of the
alleged offences and summoning of the petitioners for the said
offences. As such, this Court finds no merit in these petitions,
so, both the criminal miscellaneous petitions stand dismissed.
(Shailendra Singh, J)
annu/-
AFR/NAFR AFR
CAV DATE 04.02.2025
Uploading Date 13.02.2025
Transmission Date 13.02.2025
