MAHENDRA THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONERS have filed this application under Section 482 of Criminal Procedure Code (In short "Cr.P.C") for quashing the order dated 28.9.2004 passed by Sessions Judge, Gaya in criminal revision No. 91 of 2004 allowing the revision and setting aside the order dated 21.6.2004 passed by Sub -divisional Judicial Magistrate, Sherghati in Sherghati Police Station Case No. 56 of 2004 taking cognizance against the petitioners under Sections 147, 148, 149, 323, 324, 325 and 504 of Indian Penal Code (in short "IPC") and directing the learned Subdivisional Judicial Magistrate to consider the matter and pass order afresh in accordance with law in the light of observation made by him in the impugned order. Brief facts of the case are that on the complaint of opposite party No. 2 that on 17.4.2004 at about 8 P.M. in the night, shebuffalo of petitioner No. 1 damaged his wheat crop and when he lodged a complaint to petitioner No. 1, he was abused and on 'hulla' raised by petitioner No. 1, other petitioners, variously armed with lathi, stick, khanti, garasa came there and they assaulted opposite party No. 2 and when on hulla raised by opposite party No. 2, some other persons came there to save him, they were also assaulted by the petitioners. Sherghati Police Station Case No. 56 of 2004 was registered under Sections 147, 148, 149, 448, 323, 307and 504 of IPC against the petitioners. Petitioner No. 3 Krishna Thakur also lodged a counter case against opposite party No. 2 and others on the allegation of assault and theft of property from his house and his case was numbered as Sherghati Police Station Case No. 57 of 2004. Both the cases were investigated by local police and after investigation, police submitted charge -sheet under Sections 147, 148, 149, 323, 324, 325and 504 of IPC in Sherghati Police Station Case No. 56 of 2004 and the learned Subdivisional Judicial Magistrate took cognizance in this case under the aforesaid section of IPC against the petitioners. Opposite Party No. 2 filed a criminal revision No. 91 of 2004 before learned Sessions Judge, Gaya on the ground that learned Subdivisional Judicial Magistrate, Sherghati did not apply his judicial mind and passed order taking cognizance against the petitioners in a mechanical way ignoring the requisition of Investigating Officer to incorporate Sections 326 and 307 of IPC in the order taking cognizance against the petitioners. The learned Sessions Judge allowed this revision and directed the learned Subdivisional Judicial Magistrate to consider the matter afresh in the light of some observations made in the order and then pass orders in accordance with law.

(2.) PETITIONERS have challenged the impugned order on the ground that the learned Subdivisional Judicial Magistrate, Sherghati, after considering the charge -sheet and materials available in case diary, took cognizance under various sections of IPC and learned Sessions Judge has interfered with the order taking cognizance which was an interlocutory order and the order of learned Sessions Judge, if allowed to stand, will create an anomalous situation for the Magistrate because it will mean that he will have to review his earlier order for which he is not legally empowered to do so. Their further ground is that trial Court should have considered the issue under consideration at the time of hearing on the charge matter. Opposite Party No. 2 has appeared and has opposed the prayer of petitioners for quashing the impugned order.

(3.) THE learned counsel of petitioners, relying upon a decision of a Single Judge of this Court in the case of M. K. Agrawal and Anr. vs. The State of Bihar and Anr. [ : 2002 (2) PLJR 28], has argued that cognizance is taken of a case and not under particular sections of penal law. The facts of the present case are quite different from the case which has been relied upon by the learned counsel of petitioners because in that case order of cognizance under Sections 420, 424, 407/34and 406 of IPC was challenged on the ground that no case under some sections in which cognizance was taken was made out and the Court, after observing that it was to consider only the legality or propriety of the order of cognizance as also to see whether any offence was committed by the alleged overt act committed by the accused persons of the case, passed the order dismissing the revision. In the present case before learned Sessions Judge, the grievance of opposite party No. 2 was that in spite of materials on record showing that one injured, namely, Kuleshwar Thakur had received incised wound and he was advised x -ray of scalp and thereafter, opinion of Medical Officer was received showing that the injury was grievous, no cognizance either under Section 326 or Section 307 of IPC was taken.