Patna High Court
Mahesh Kumar @ Mahesh Kumar Raut vs The State Of Bihar on 24 March, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.5641 of 2024
Arising Out of PS. Case No.-69 Year-2023 Thana- BIBHUTIPUR District- Samastipur
======================================================
Mahesh Kumar @ Mahesh Kumar Raut, S/o Dinesh Raut, wrongly shown in
the F.I.R. as Mahesh Kumar Raut, resident of Village- Sinhia Ghat, (in the
F.I.R. wrongly mentioned as Sheonathpur Sinhia), P.S.-Bibhutipur, Dist.-
Samastipur.
... ... Petitioner
Versus
1. The State of Bihar
2. Ranjeet Prasad, son of Rameshwar Mahto, Resident of Village-Ward No.7,
Virsahiya Bibhutipur, P.S.-Samastipur, Bihar.
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner/s : Mr. R.P. Sharma, Advocate
Ms. Madhuri Kumari, Advocate
For the State : Mr. Nirmala Kumari, APP
For the Informant/O.P. No.2: Mr. Pramod Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 24-03-2025
Heard learned counsel appearing for the petitioner
and learned APP appearing for the State duly assisted by
learned counsel appearing for the informant/O.P. No.2.
2. The present application has been filed by the
petitioner for quashing the order dated 16.06.2023 as passed
by Incharge Sub Divisional Judicial Magistrate, Rosera in
Bibhutipur P.S. Case No.69 of 2023, G.R. No.276 of 2023,
whereby the learned jurisdictional Magistrate has taken
cognizance for the offences punishable under Sections 302,
120-B, 414, 467, 468 read with 34 of the Indian Penal Code
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
2/20
(in short 'IPC') and Section 25(1-B) of the Arms Act against
the petitioner.
3. The brief case of prosecution, as it appears from
the written information lodged by Ranjit Prasad/informant
that his brother Surendra Prasad Singh was Mukhiya of Sinhia
Bujurg Gram Panchayat, (South) in the year 2021. His
Bhabhi was candidate for the post of Mukhiya, where wife of
Ram Balak Singh, Ex-M.L.A. was also one contesting
candidate for the said post and she had won the election. His
Bhabhi had lost election. Due to death of present Mukhiya of
Sinhia Bujurg, (South), in the year 2022, midterm election
was likely to be held in for which his brother Surendra Prasad
Singh had declared that his wife will fight election again, and
thus he started preparation for coming election. Upon so, Ram
Balak Singh and Lal Babu Singh alongwith his associates had
threatened to kill his brother in presence of his Bhabhi and
family members. It is further stated that on 20.02.2023 at
about 7.30 A.M. his brother Surendra Prasad Singh along with
Satyanarain Singh, while on way to his brick kiln at Bharpura
Tola at Chochahi, were followed by them along with one
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
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Shashi Bhushan Singh. When they reached near Bachani
Kachhary of village Madiha, certain persons assembled there
and surrounded car of his brother. Amongst them, he saw
Ram Balak Singh, Lal Babu Singh, both sons of Ram Jiwan
Singh, Kailash Singh, son of Jageshwar Singh, Abhimanyu
Singh, son of Shankar Singh, Mahesh Kumar Raut, son of
Dinesh Raut (petitioner), Ramashray Singh @ Tunna Singh,
son of Ram Shankar Singh all resident of village-
Sheonathpur, Gram Panchayat Sindhia Buzurg (South), P.S.
Bibhutipur, District Samastipur and four to five unknown
persons armed with different weapons. Amongst them, Ram
Balak Singh used abusive language and ordered to kill his
brother as only then, he will leave to contest election.
Thereafter, Lal Babu Singh opened fire, which hit to the head
of his brother, further firing was made by Kailash Singh,
which hit to Satyanarain Singh on his face due to which, both
of them fell down to the ground. Thereafter, they started
firing indiscriminately and ran away. Later on, with the help of
villagers, both above injured persons were taken to hospital,
where his brother was declared dead. Satyanarain was
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
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referred to D.M.C.H. (Darbhanga Medical College and
Hospital) for better treatment, where he also died on the way.
It is further stated that accused persons stated that they
killed his brother so that his wife could not fight the coming
election of gram panchayat. He further stated that accused
Ram Balak Singh is convict, whereas Lal Babu Singh is
accused of several cases.
4. On the basis of aforesaid written information
lodged by Ranjeet Prasad, the informant, Bibhutipur P.S.
Case No.69 of 2023 dated 21.2.2023 was registered against
the petitioner and other accused persons.
5. It is submitted by Mr. R.P. Sharma, learned
counsel for the petitioner that during the investigation, only
one witness, namely, Shashi Bhushan Singh, other than the
informant has named the petitioner. So far as rest of the
witnesses are concerned, all are hearsay witnesses qua
involvement of petitioner. After completion of investigation,
the police submitted charge-sheet against other named
accused persons. So far as the petitioner is concerned, he was
not charge-sheeted taking into account complete lack of
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
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evidence about his participation in the alleged occurrence.
6. After submission of charge-sheet against the
accused persons, other than this petitioner, the learned
Incharge Sub Divisional Judicial Magistrate, Rosera, vide
order dated 16.6.2023, took cognizance against the petitioner
also on the basis of material available on record.
7. Mr. R. P. Sharma, learned counsel appearing on
behalf of the petitioner submitted that the petitioner is a
Panchayat Teacher in government Primary School, Bhiri, P.S.-
Bibhutipur, district Samastipur. On the day of the alleged
occurrence, the petitioner's son Ashish Raj, an examinee of
matriculation, had to appear at the examination centre at
Tajpur High School. On 20.2.2023, when petitioner started
to proceed for Tajpur alongwith his son, then at 9.00 A.M., he
heard that Surendra Singh was shot by some unknown
miscreants on the way to his brick kiln and he was taken to
hospital for treatment. In protest, public had assembled on
the road at different places. Being perturbed, he started for
Tajpur on motorcycle along with his son as to enable him to
appear at the examination at 9:00 A.M. itself, which was
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
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going to start at 1.00 P.M. and after examination, he stayed
at the house of his Phupheri sister Indu Kumari at village-
Digharua.
8. Mr. Sharma further submitted that during the
investigation, the petitioner apprised the investigating officer
as well as superior police officers about his defence of alibi,
which was examined by the police after searching out location
of mobile tower of the petitioner and Investigating Officer has
also examined several witnesses. On the basis of their
statements, the Investigating Officer came to a conclusion
that the petitioner was not present at the place of alleged
occurrence, rather at the time of the alleged occurrence, he
was at his village home about 5-6 km. away from the alleged
place of occurrence and was preparing to leave for Tajpur to
enable his son to appear in his matriculation examination. It is
further submitted that the petitioner was having no concern
with animosity in between Surendra Singh, the deceased and
Ram Balak Singh, Ex.-M.L.A. The petitioner had never made
association with accused Ram Balak Singh or co-accused Lal
Babu Singh. It is further submitted that the petitioner has got
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
7/20
clean antecedent.
9. Arguing further, Mr. Sharma submitted that the
petitioner is quite innocent and there is ample evidence in
support of "alibi" of the petitioner and there is no evidence
about involvement of the petitioner in the alleged occurrence.
10. It is further submitted that the petitioner is not
accused in any other case. At present, the petitioner is posted
as teacher in Primary School, Bhiri, P.S.-Bibhutipur, district
Samastipur. He had joined said school as "Niyojit School
Teacher" on 24.02.2007. Though, the petitioner's name is
Mahesh Kumar but, his name has wrongly been mentioned as
Mahesh Kumar Raut. His village has also been wrongly
mentioned as Sheonathpur, where his village name is Sinhia
Ghat. It is further submitted that the impugned order passed
by the learned Sub-divisional Magistrate is totally against the
material available on the record and same is fit to be quashed.
11. While concluding argument, Mr. Sharma,
learned counsel for petitioner has relied upon the legal report
of this High Court as passed in the matters of S.M. Mahtab
Ahmad vs. the State of Bihar and Another reported as
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
8/20
2016 (4) PLJR 508; Babloo Paswan & Others vs. State
of Bihar and Others reported as 2019 (2) PLJR 584; and
also in the matter of Manish Kumar Jha vs. State of Bihar
and Other reported as 2023 (2) PLJR 833.
12. On the other hand, learned APP and Mr.
Pramod Kumar Singh, learned counsel appearing on behalf of
informant/O.P. No.2 submitted that the petitioner has also
preferred a Cr. Misc. No.8873 of 2024 challenging the order
dated 09.11.2023, where the petition of petitioner preferred
under Section 227 of the CrPC before the learned trial court
was rejected but, same was dismissed by this Court as
withdrawn, vide order dated 24.03.2025. It is further
submitted that informant is the eye-witness of this
occurrence, where he noted the presence of petitioner along
with other co-accused persons while surrounding his deceased
brother during the occurrence. It is pointed out that the main
plea of petitioner is 'alibi' as at the time of alleged occurrence,
he was proceeded for Tajpur with his son, as his son was an
appearing candidate of Bihar School Examination Board
scheduled to be held from 14.02.2023 to 21.02.2023 in the
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
9/20
2nd shift at 01:45 P.M. till 05:00 P.M.
13. It is pointed out that the occurrence took place
on 20.02.2023, as per FIR. The distance of place of
occurrence to that of the school is hardly 30-40 kms and,
therefore, it cannot be said that the presence of petitioner
was impossible on the place of occurrence at relevant point of
time. It is further submitted that I.O., during investigation
found petitioner at his village home, which is about 5-6 km.
away from place of occurrence on the ground of mobile tower
location. With such proximity of petitioner qua place of
occurrence, benefit of "alibi" could not be given to petitioner
and, therefore, I.O. must file charge-sheet against petitioner
also, who is a named accused.
14. Mr. Singh further submitted that beside
aforesaid, different factual aspects like, no previous enmity,
no proximity with co-accused, denying any conspiracy and
disputed identification etc. as raised in support of innocence
of petitioner cannot be looked into at this stage for the reason
that as per settled principles, all these facts can be looked into
during the trial only. It is further submitted that plea of " alibi"
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
10/20
is the rule of evidence and at this stage, maximum what
Courts can look into that whether the FIR disclosed prima
facie involvement of petitioner with alleged occurrence or not.
Admittedly, the petitioner is a named accused in present
double murder case, where informant is the eye-witness of
the occurrence. Merely on the ground that the specific
allegation of firing not appears available against petitioner,
the version of defence and "alibi" cannot be looked into at this
stage.
15. In support of his submissions, learned APP has
relied upon the legal report of Hon'ble Supreme Court as
available through Sunil Bharti Mittal vs. Central Bureau
of Investigation and Ors. [(2015) 4 SCC 609]; Rakhi
Mishra vs. State of Bihar and Ors. [(2017) 16 SCC
772]; and Nupur Talwar vs. CBI [(2012) 2 SCC 188] .
16. It would be apposite to reproduce paragraph-9
of the legal report of this Court as passed in the matter of
S.M. Mahtab Ahmad Case (supra), which which has been
cited by learned counsel for the petitioner is as under:-
"9. It goes without saying that if an investigating
agency after thorough investigation submits final
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
11/20
report exonerating accused persons, the said report
may not be treated as waste paper. Once such report
os submitted, the learned Magistrate at the time of
differing with the police report is required to assign
succinct reason. Since in order impugned, no reason
has been assigned, the Court of satisfied that order
impugned is liable to be set aside, particularly, in view
of nature of accusation, as has been levelled in the
complaint petition."
17. It would further be apposite to reproduce
paragraph-9 of the legal report of this Court as passed in the
matter of Babloo Paswan case (supra), which has been
cited by learned counsel for the petitioner is as under:-
"9. Accordingly, the order impugned is hereby set
aside and matter is remitted back to the learned
Magistrate to examine the record and pass order in
accordance with law. If the learned Magistrate
intends to proceed against the petitioners, he is
required to succinctly indicate reason for differing
with the police report."
18. It would also apposite to reproduce relevant
paragraph-10 of the legal report of this Court as passed in the
matter of Manish Kumar Jha case (supra), which has been
cited by learned counsel for the petitioner is as under:-
"10. It is an admitted fact that impugned order of
cognizance dated 04.07.2017 is a non-speaking
order and any order by a Judicial Authority which is a
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
12/20
non-speaking order is no order in the eye of law and
it cannot be sustained."
19. It would further be apposite to reproduce the
impugned order of cognizance dated 16.06.2023 as passed
by learned S.D.J.M. Rosera in Bibhutipur P.S. Case No.69 of
2023, G.R. No.276 of 2023 for better understanding of the
case, which is as under:-
"U;k;ky;
vuqeaMy U;kf;d n.Mkf/kdkjh&jkslM+kA
foHkwfriqj Fkkuk dka la0&69@2023] th- vkj- la0&276@2023
16-6-23
ih0 vks0 dk LFkkukarj.k gks x;k gSA
okn la;ku vkns"k gsrq yafcr gSA okn iqdkj djk;k
x;kA iqdkj ij cpko i{k ds fo}ku vf/koDrk ,oa fo}ku lgk;d
vfHk;kstu inkf/kdkjh U;k;ky; esa mifLFkr gq,A
ctko i{k ds fo}ku vf/koDrk fQzLr lcwr ds
lkFk :fyax nkf[ky dj dFku djrs gSa fd vuqla/kkudrkZ }kjk
dkjk/khu vfHk;qDr egs"k dqekj jkmr dks vuqRizsf'kr fn[kkrs gq, okn
ds izkFkfedh vfHk;qDrx.k 1- jkeckyd flag 2- ykyckcw flag mQZ
ykyckcw izlkn 3- vfHkeU;q flag mQZ eUuq 4- dSyk"k flag 5- jkekJ;
flag mQZ Vquk flag ds fo:) vkjksi i= lefiZr fd;k x;k gSA pqWafd
dkjk/khu vfHk;qDr egs"k dqekj jkmr funksZ'k gS mUgksus dksbZ vijk/k
dkfjr ugha fd;k gSA ?kVuk dh frfFk dks dkjk/khu vfHk;qDr egs"k
dqekj jkmr xkWao esa ugh Fks og vius iq= dk ijh{kk fnykus xkWao ls
ckgj x;s FksaA
vr% dkjk/khu vfHk;qDr egs"k dqekj jkmr dks vkjksi
ls eqDr djus gsrq vkns"k nsus dh d`ik dh tk,A
fo}ku lgk;d vfHk;kstu inkf/kdkjh dk dFku gS fd
vuqla/kkudrkZ }kjk dkjk/khu vfHk;qDr egs"k dqekj jkmr dks
vuqRizsf'kr fn[kkrs gq, bl okn ds izkFkfedh vfHk;qDrx.k 1-
jkeckyd flag 2- ykyckcw flag mQZ ykyckcw izlkn 3- vfHkeU;q
flag mQZ eUuq 4- dSyk"k flag 5- jkekJ; flag mQZ Vquk flag ds
fo:) vkjksi i= lefiZr fd;k x;k gSA vuqla/kkudrkZ ds }kjk
lefiZr dkaM nSfudh ds dafMdk 06 esa oknh dk iqu% c;ku ,oa
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
dafMdk 33]34]35 ,oa 36 esa lkf{k;ksa dk c;ku ntZ fd;k x;k gSA
ftlesa vius vius c;ku esa izkFkfedh ds uketn lHkh vfHk;qDrksa dk
izkFkfedh dh ?kVuk esa lafyIrrk dk iw.kZr% leFkZu fd;k gSA vr%
vuqRiszf'kr fn[kk;s x;s dkjk/khu vfHk;qDr egs"k dqekj jkmr ds
lkFk&lkFk izkFkfedh ds uketn lHkh dkjk/khu vfHk;qDrksa ds fo:)
vkjksi dk iz;kZIr lk{; gSA
mHk; i{k dks lquk vkjksi&i=] dkaM nSfudh ,oa
vfHkys[k dk voyksdu fd;kA vfHkys[k voyksdu ls fofnr gksrk gS
fd vuqla/kkudrkZ }kjk izLrqr okn esa dkjk/khu izkFkfedh vfHk;qDr
egs"k dqekj jkmr dks vuqRizsf'kr fn[kkrs gq, izkFkfedh ds uketn
dkjk/khu vfHk;qDrx.k 1- jkeckyd flag 2- ykyckcw flag mQZ
ykyckcw izlkn 3- vfHkeU;q flag mQZ eUuq 4- dSyk"k flag 5-
jkekJ; flag mQZ Vquk flag ds fo:) vkjksi i= la[;k&164@23
fnukad 27-05-23 Hkk0 n0 fo0 302]120ch]414]467]468@34 ,oa
25¼1&ch½,] 26]27]35] vkElZ ,DV ds vUrZxr vkjksi&i= lefiZr
fd;k x;k gS rFkk iqjd vuqla/kku tkjh j[kk gSA izkFkfedh]
vkjksi&i=] dkaM nSfudh ,oa vU; dkxtkr tks vuqla/kkudrkZ }kjk
lefiZr fd;k x;k gS dk voyksdu fd;kA voyksdu ls Li'V gS
fd dkaM nSfudh ds dafMdk 06 esa oknh dk iqu% c;ku ,oa dafMdk
33]34]35 ,oa 36 esa lkf{k;ksa us vius vius c;ku esa izkFkfedh ds
uketn lHkh vfHk;qDrks dk izkFkfedh dh ?kVuk esa lafyIrrk dk
iw.kZr% leFkZu fd;k gSA
vr% vkjksi i= ds dkWye la[;k&11 eas vafdr
izkFkfedh vfHk;qDrx.k 1- jkeckyd flag 2- ykyckcw flag mQZ
ykyckcw izlkn 3- vfHkeU;q flag mQZ eUuq 4- dSyk"k flag 5-
jkekJ; flag mQZ Vquk flag ds lkFk&lkFk vuqla/kkudrkZ }kj
vuqRizsf'kr fn[kk;s x;s vfHk;qDr egs"k dqekj jkmr ds fo:) Hkk0
n0 fo0 /kkjk 302]120ch]414]467]468@34 ,oa 25¼1&ch½,]
26]27]35] vkElZ ,DV ds vUrZxr izFke n`'V;k ekeyk ijhyf{kr
gksrk gSA
vr% vfHk;qDrx.k 1- jkeckyd flag 2- ykyckcw
flag mQZ ykyckcw izlkn 3- vfHkeU;q flag mQZ eUuq 4- dSyk"k
flag 5- jkekJ; flag mQZ Vquk flag 6- egs"k dqekj jkmr ds
fo:) vkjksi&if=r Hkk0 n0 fo0 /kkjk
302]120ch]414]467]468@34 ,oa 25¼1&ch½,]26]27]35] vkElZ ,DV
ds vUrZxr laKku fy;k tkrk gSA
rn~kuqlkj dkjk/khu vfHk;qDr egs"k dqekj jkmr dh
vksj ls fnukad 02-06-2023 dk nkf[ky vkosnu fu'ikfnr fd;k
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
tkrk gSA
pwWafd Hkk0 n0 fo0 dh /kkjk 302 vuU; :i ls l=
U;k;ky; }kjk fopkkj.kh; gSA vr% okn dks miLFkkiu]
izfrfyfi ,oa nkSM+k lqiqnxhZ gsrq fuft lafpdk esa j[kk tkrk gSA
dk;kZy; fyfid iwjd vuqla/kku tkjh vfHk;qDrx.k dk okn
i`Fkd djsaA
fnukad 20-06-23 okLrs miLFkkiuk] izfrfyfi ,oa
nkSM+k lqiwnxhZA
ys[kkfir
iz0 vuq0 U;k0 n.Mk0
jkslM+kA"
20. It would be apposite to reproduce paragraph
Nos.-16, 17, 18 and 22 of the legal report of Hon'ble
Supreme Court as available through Nupur Talwar case
(supra), which is as under:-
"16. Section 190 of the Code lays down the
conditions which are requisite for the initiation of a
criminal proceeding. At this stage the Magistrate is
required to exercise sound judicial discretion and
apply his mind to the facts and materials before him.
In doing so, the Magistrate is not bound by the
opinion of the investigating officer and he is
competent to exercise his discretion irrespective of the
views expressed by the police in its report and may
prima facie find out whether an offence has been
made out or not.
17. The taking of cognizance means the point in
time when a court or a Magistrate takes judicial notice
of an offence with a view to initiating proceedings in
respect of such offence which appears to have been
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
committed. At the stage of taking of cognizance of
offence, the court has only to see whether prima facie
there are reasons for issuing the process and whether
the ingredients of the offence are there on record.
18. The principles relating to taking of cognizance
in a criminal matter has been very lucidly explained by
this Court in Chief Enforcement Officer v. Videocon
International Ltd. [(2008) 2 SCC 492], the relevant
observations wherefrom are set out:
"19. The expression 'cognizance' has
not been defined in the Code. But the word
(cognizance) is of indefinite import. It has no
esoteric or mystic significance in criminal law.
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.
20. 'Taking cognizance' does not
involve any formal action of any kind. It
occurs as soon as a Magistrate applies his
mind to the suspected commission of an
offence. Cognizance is taken prior to
commencement of criminal proceedings.
Taking of cognizance is thus a sine qua non
or condition precedent for holding a valid
trial. Cognizance is taken of an offence and
not of an offender. Whether or not a
Magistrate has taken cognizance of an
offence depends on the facts and
circumstances of each case and no rule of
universal application can be laid down as to
when a Magistrate can be said to have taken
cognizance."
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
22. Reference in this connection may be made to
a three-Judge Bench decision of this Court in India
Carat (P) Ltd. v. State of Karnataka [(1989) 2 SCC
132]. Explaining the relevant principles in para 16,
Natarajan, J. speaking for the unanimous three-Judge
Bench, explained the position so succinctly that we
would rather quote the observation as under:-
"16. The position is, therefore, now well settled
that upon receipt of a police report under Section
173(2) a Magistrate is entitled to take
cognizance of an offence under Section 190(1)
(b) of the Code even if the police report is to the
effect that no case is made out against the
accused. The Magistrate can take into account
the statements of the witnesses examined by the
police during the investigation and take
cognizance of the offence complained of and
order the issue of process to the accused.
Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence
only if the investigating officer gives an opinion
that the investigation has made out a case
against the accused. The Magistrate can ignore
the conclusion arrived at by the investigating
officer and independently apply his mind to the
facts emerging from the investigation and take
cognizance of the case, if he thinks fit, in
exercise of his powers under Section 190(1)( b)
and direct the issue of process to the accused."
These well-settled principles still hold good.
Considering these propositions of law, we are of the
view that we should not interfere with the concurrent
order of the Magistrate which is affirmed by the High
Court."
21. It would further be apposite to reproduce
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
paragraph-33 of the legal report of Hon'ble supreme Court as
available through Sunil Bharti Mittal case (supra), which is
as under:-
"33. In the first instance, we make it clear
that there is no denying the legal position that even
when a person is not named in the charge-sheet as an
accused person, the trial court has adequate powers
to summon such a non-named person as well, if the
trial court finds that the charge-sheet and the
documents/material placed along with the charge-
sheet disclose sufficient prima facie material to
proceed against such person as well. Kishun Singh
and Dharam Pal are the direct decisions on this
aspect. However, in the present case, the question is
not as to whether there is sufficient incriminating
material against the appellants filed in the trial court
to proceed against them. Whether such a material is
there or not is not reflected from the impugned order
as that aspect is not even gone into. The learned
Special Judge has not stated in the order that after
examining the relevant document, including
statement of witnesses, he is satisfied that there is
sufficient material on record to proceed against the
appellants as well."
22. It would further be apposite to reproduce
paragraph-4, 5 and 6 of the legal report of Hon'ble Supreme
as available through Rakhi Mishra case (supra), which is as
under:-
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
"4. We have heard learned counsel
appearing for the parties. We are of the considered
opinion that the High Court erred in allowing the
application filed by Respondents 2, 4, 5, 6, 7, 8, 9 and
10 and quashing the criminal proceedings against
them. A perusal of FIR would clearly show that the
appellant alleged cruelty against Respondents 2, 4, 5,
6, 7, 8, 9 and 10. This Court in Sonu Gupta v.
Deepak Gupta [(2015) 3 SCC 424] held as follows:-
"8. ... At the stage of cognizance and
summon the Magistrate is required to apply his
judicial mind only with a view to take
cognizance of the offence ... to find out whether
a prima facie case has been made out for
summoning the accused person. At this stage,
the learned Magistrate is not required to
consider the defence version or materials or
arguments nor is he required to evaluate the
merits of the materials or evidence of the
complainant, because the Magistrate must not
undertake the exercise to find out at this stage
whether the materials would lead to conviction
or not."
5. The order passed by the trial court
taking cognizance against R-2 and R-4 to R-9 is in
conformity with the law laid down in the above
judgment. It is settled law that the power under
Section 482 CrPC is exercise by the High Court only
in exceptional circumstances only when a prima facie
case is not made out against the accused. The test
applied by this Court for interference at the initial
stage of a prosecution is whether the uncontroverted
allegations prima facie establish a case.
6. A perusal of the complaint would disclose a
prima facie case against Respondent 2, 4 to 10. The
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
order passed by the Chief Judicial Magistrate by
which cognizance was taken ought not to have been
interfered with by the High Court."
23. In view of aforesaid factual and legal
submissions and by taking note of fact as informant is the
eye-witness of the present occurrence of double murder,
where the petitioner was found present along with other
named co-accused persons at place of occurrence prima facie
as an accomplice, where the main plea of " alibi" and also
certain facts like, previous enmity, absence of conspiracy and
disputed identification etc., certainly cannot be looked into at
this stage, because the Court only to look into a "prima facie"
case in view of legal ratio as settled above.
24. No doubt, the learned Jurisdictional Magistrate
is empowered under law to take a different view from the
police report as per Section 173(2) of CrPC, if a prima facie
case is made out against the accused person on the basis of
material available on record to take cognizance of an offence
under Section 190(1)(b) of the CrPC. For said different note,
the reason appears well-assigned through impugned
cognizance order, as discussed above. The impugned order is
Patna High Court CR. MISC. No.5641 of 2024 dt.24-03-2025
a detailed and reasoned order, and, therefore, the same need
not requires any interference while dealing with the present
petition, in view of observation of this Court as recorded in
para-23 (supra) and by also taking a guiding note from
Nupur Talwar Case (supra).
25. Accordingly, the present petition stands
dismissed, being devoid of any merit.
26. Let a copy of this order be communicated to
the court concerned immediately.
(Chandra Shekhar Jha, J.)
Sanjeet/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 05-04-2025
Transmission Date 05-04-2025
