Patna High Court
Shailender Kumar Yadav vs The State Of Bihar on 20 February, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.68587 of 2024
Arising Out of PS. Case No.-421 Year-2017 Thana- DARBHANGA SADAR District-
Darbhanga
======================================================
Shailender Kumar Yadav Son of Hari Narayan Yadav R/o Village- Behad
Kabirchak, P.S.- Sadar, District- Darbhanga
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Umesh Kumar Verma, Adv.
For the Opposite Party/s : Mr. Anand Kishore Choudhary, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 20-02-2025
Heard the parties.
2. That this application is being filed for
quashing the cognizance order dated 17.06.2023 passed
by learned court of Special Judge of Excise Act
Darbhanga, through which cognizance was taken against
the petitioner by editing and rectifying order dated
03.11.2018
by which cognizance was taken against three
alleged accused persons only under section 30(a), 38(i),
(iii) of Bihar Excise Act in connection with Sadar P.S.
Case No. 421 of 2017 dated 02.11.2017.
3. The core issue which was raised by learned
Patna High Court CR. MISC. No.68587 of 2024 dt.20-02-2025
counsel for the petitioner is that despite of availability of
all material before the learned trial court at first instance,
the learned trial had not taken cognizance against
petitioner through its cognizance order dated
03.11.2018. It is submitted that the learned successor
court on same materials took cognizance against the
petitioner on 17.06.2023 by modifying the earlier
cognizance order dated 03.11.2018, which is not
permissible under the law.
4. Learned APP for the State fairly submitted
that the cognizance against this petitioner was taken vide
modified order dated 17.06.2023, where modification
was done on the basis of clerical mistakes.
5. In aforesaid context, it would be apposite to
reproduce the cognizance order dated 03.11.2018:-
"Case record put up. Perused the case record, FIR,
Charge-sheet and Police Case diary. After perusal
of the same I find that the I.O. of this case has
submitted charge-sheet u/s 30(a), 38(i)(iii) of
Bihar excise act, 2016 against the accused (1)
Chandra Mohan Singh (2) Tara Mohan Singh (3)
Babloo Poddar. According the Cognizance has
taken in the offence u/s 30(a), 38(i)(iii) of Bihar
Patna High Court CR. MISC. No.68587 of 2024 dt.20-02-2025
excise act, 2016 against the accused (1) Chandra
Mohan Singh (2) Tara Mohan Singh (3) Babloo
Poddar. O/C is directed to issue Summon against
the accused. Put up on 30-1-19 for appearance."
6. It would be further apposite to reproduce the
cognizance order dated 17.06.2023:-
"In the Court of Special Judge of Excise Act-I,
Darbhanga GO-1686/17
Out of 03 accused persons two accused
namely- Chandra Mohan Singh and Babloo
Poddar are in attendance. Rest one accused-
Tara Mohan Singh is absent. From perusal of
case record it is clear that four accused were
F.I.R. named namely- Chandra Mohan Singh,
Tara Mohan Singh, Babloo Poddar and
Shailendra Yadav. Further, C/S was also
submitted against them. But, due to clerical
mistake cognizance was taken against only
three accused namely- Chandra Mohan Singh,
Tara Mohan Singh and Babloo Poddar and
name of accused- Shailendra Yadav was left
out vide order dt. 03-11-18. The mistake is
topographical/ classical mistake in nature.
Therefore, cognizance order dt. 03-11-18 is
edited today and name of accused- Shailendra
Kr. Yadav is added to the Column of accused
in cognizance order dt. 03-11-18. Cognizance
order dt. 03-11-18 is rectified to this extent.
O/C to issue Summon of accused Shailendra
Kr. Yadav and NB/W against accused- Tara
Mohan Singh. On 09-10-23 for appearance."
7. No doubt, it is established principle of law
that the Special Court (Excise) enjoying the power of
Patna High Court CR. MISC. No.68587 of 2024 dt.20-02-2025
learned Magistrate being the original court. It is
established position of law that learned Magistrate can't
modify/edit its order subsequently. It is submitted that
comparing the impugned order of cognizance i.e.,
17.06.2023 qua the earlier cognizance order of
03.11.2018, it cannot be said that it was a clerical error.
The omission of name while taking cognizance at earlier
occasion may be a negligent act but it cannot be said out
of clerical error. The negligence of court cannot be
supplement under the garb of clerical error and to permit
cognizance taking court to modify its earlier order of
cognizance.
8. In view of aforesaid, the impugned order of
cognizance dated 17.06.2023 passed by learned Special
Judge, Excise Act Darbhanga qua petitioner is hereby set
aside and quashed with all its consequential proceedings.
9. It is made clear that aforesaid observation
having no bearing, if material qua petitioner surfaced
during the trial as to proceed the learned trial court under
Patna High Court CR. MISC. No.68587 of 2024 dt.20-02-2025
section 319 of the Code of Criminal Procedure.
10. Let copy of this order be sent to the
learned trial court, without delay.
(Chandra Shekhar Jha, J)
Sudha/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 27.02.2025
Transmission Date 27.02.2025
