Baleshwar Barnwal & Ors vs The State Of Bihar on 11 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.46092 of 2014
Arising Out of PS.Case No. -202 Year- 2012 Thana -JAMUI District- JAMUI

1. Baleshwar Barnwal S/o Late Hiralal Barnwal

2. Dilip Kumar @ Dilip Kumar Barnwal Son of Baleshwar Barnwal

3. Md. Arman Khan Son of Asgar Khan Petitioner No. 1 to 2 Resident of
Mohalla- Mahisouri Bazar Jamui, District- Jamui and Petitioner No.-3 is
R/o Mohalla- Islamnagar, P.S. + Distt.- Jamui

4. Birendra Yadav Son of Thakuri Yadav Resident of village-
Dumarkola, P.S.- Khaira, District- Jamui
…. …. Petitioner
Versus
The State of Bihar
…. …. Opposite Party

Appearance :

For the Petitioners : Mr. Satya Prakash Parasar, Advocate
For the Opposite Party : Mr. L.K. Sharma, Additional Public Prosecutor

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 11-10-2017

Heard learned counsel for the petitioners and

learned Additional Public Prosecutor for the State.

The petitioners are aggrieved by the order dated

05.09.2014 passed in G.R. No. 1033/2012 arising out of Jamui

P.S. Case No. 202/2012, by which learned Sub-Divisional

Judicial Magistrate, Jamui has differed with the police report

and took cognizance, not only against Section 353/34 of the

Indian Penal Code under which the charge-sheet was filed
Patna High Court Cr.Misc. No.46092 of 2014 dt.11-10-2017

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but also took cognizance under Section 7 of the Essential

Commodities Act.

Learned counsel for the petitioners submits that

so far as power of the learned court below to differ with the

police report is concerned, there is no doubt with respect

thereof, but in the present case, the cognizance at least

under Section 353 I.P.C. has been wrongly taken in a routine

and mechanical manner without applying a judicious mind to

the facts appearing from the F.I.R. and the case diary.

Learned counsel submits that the order taking

cognizance under Section 353 I.P.C. would not be sustainable

for the simple reason that these petitioners are not said to be

present on the place of occurrence and allegedly had fled

away, then, there is no question of committing any act of

assault against the police authorities, so as to attract the

provisions of Section 353 I.P.C.

Learned Additional Public Prosecutor for the State

submits that the learned Sub-Divisional Judicial Magistrate,

Jamui has got power to differ with the police report and if he

has partly differed in taking cognizance under Section 7 of

the E.C. Act as well as under the charge-sheeted provision of
Patna High Court Cr.Misc. No.46092 of 2014 dt.11-10-2017

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Section 354 I.P.C., no fault may be found with his power or

jurisdiction, but having said so the learned Additional Public

Prosecutor fairly submits that the contention of learned

counsel for the petitioner as regards the cognizance under

Section 353 I.P.C. seems to have some force.

This Court has considered the materials available

on the record and has gone through the impugned order. The

learned Sub-Divisional Judicial Magistrate, Jamui has

discussed various paragraphs of the case diary, and upon

such discussion, order of cognizance has been passed. The

impugned order, however, is not stating as to how

cognizance has been taken under Section 353 I.P.C. against

these petitioners.

So far as cognizance under Section 7 of the E.C.

Act is concerned, this Court does not find any illegality or

infirmity with the order taking cognizance under Section 7 of

the E.C. Act.

As the materials available on record do not

indicate any reason or ground for taking cognizance under

Section 353 I.P.C., the said part of the order passed by

learned Sub-Divisional Judicial Magistrate, Jamui by which he
Patna High Court Cr.Misc. No.46092 of 2014 dt.11-10-2017

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has taken cognizance under Section 353 I.P.C. is hereby

quashed.

The order taking cognizance under Section 7 of

the E.C. Act is not interfered with.

This application is, therefore, partly allowed.

(Rajeev Ranjan Prasad, J.)
Rajeev/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 12.10.2017
Transmission 12.10.2017
Date

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