Shailendra Lal vs The State Of Bihar on 2 May, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.53963 of 2013
Arising Out of PS.Case No. -275 Year- 2013 Thana -ROHTAS COMPLAINT CASE District-
SASARAM (ROHTAS)

Shailendra Lal S/O Shri Laxman Lal Resident Of Mohalla Gourixani
Santoshi Maa Path, Street No. 11-A, At And P.O. Sasaram, P.S. Sasaram
(T), District Rohtas.

…. …. Petitioner/s
Versus
The State Of Bihar

…. …. Opposite Party/s

Appearance :
For the Petitioner/s : Mr. Ajay Nandan Sahay
For the Opposite Party
No.2 : Mr. Bajrangi Lal
For the State : Mr. kumar Birendra Narayan

CORAM: HONOURABLE MR. JUSTICE SANJAY PRIYA
ORAL ORDER

7 02-05-2017 1. The petitioner seeks quashing the order dated

24.10.2013 passed by the learned Sessions Judge,Rohtas in

Cr.Rev. No. 229 of 2013 affirming the order taking cognizance

dated 12.07.2013 by the Judicial Magistrate, 1st Class Sasaram

(Rohtas) in Complaint Case No.275 of 2013 under Section 406 of

the Indian Penal Code as well as under Section 138 of N.I.Act.

2. Heard learned counsel for the petitioner and the

State.

3. Counsel for the petitioner has submitted that the

main ground of challenging the order is that the learned Sessions

Judge did not take into consideration the fact that without taking
Patna High Court Cr.Misc. No.53963 of 2013 (7) dt.02-05-2017

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cognizance, the learned Chief judicial Magistrate transferred the

case under Section 192(1) Cr.P.C. to the Court of Judicial

Magistrate, 1st Class for enquiry. Thereafter the learned magistrate

after holding enquiry found, prima facie, case against the

petitioner for the offence under Section 406 IPC and Section 138

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N.I.Act vide order dated 12.07.2013. The aforesaid order dated

12.07.2013 was challenged before the learned Sessions Judge in

Cr. Rev. No. 229 of 2013.The learned Sessions Judge dismissed

the aforesaid revision vide order dated 24.10.2013.The petitioner

is aggrieved by both the order of the court below.

4. In support of his submission learned counsel for

the petitioner has relied upon a judgment of this Court in the case

of Arbind Kumar Sinha -v- State of Bihar, reported in

1990(2)PLJR 511. He has submitted that it is mandatory on the

part of the Judicial Magistrate to take cognizance. It is also

mandatory for the Magistrate to transfer the case after complying

with the provision of Section 192( 1) Cr.P.C.

5. Learned counsel for opposite party no.2 has

submitted that from order dated 22.03.2013 it is pertinent that the

court below has transferred the case under Section 192(1) Cr.P.C.

It means that the cognizance has already been taken by the

Magistrate. Thereafter the learned Chief Judicial Magistrate
Patna High Court Cr.Misc. No.53963 of 2013 (7) dt.02-05-2017

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transferred the case under Section 192(1) Cr.P.C. to the court of

Magistrate for enquiry. Subsequently enquiry under Section 202

Cr.PC. was held by the Magistrate and the learned Magistrate vide

order dated 12.07.2013 found prima facie case against all the

accused persons for the offences under Section 406 IPC and

Section 138 of N.I.Act.

6. Learned counsel for opposite party has submitted

that subsequently the petitioner has been declared absconder in

court below as he did not appear before the court even after

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issuance of process against him and at present proceeding under

section 299 Cr.P.C. is pending against the petitioner. Three

witnesses have already been examined. The counsel for the

petitioner has, however, submitted that he has no knowledge of

present status of the case.

7. In the instant case the counsel for the petitioner

has raised only one point of law that the Magistrate has

transferred the case without taking cognizance. The Magistrate has

not complied with the mandatory provision of Section 192(1)

Cr.P.C. It is relevant to quote the provision of Section 190(1),

which is as follows:

“190.Cognizance of offences by Magistrate-(1)
Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of
the second class specially empowered in this behalf
Patna High Court Cr.Misc. No.53963 of 2013 (7) dt.02-05-2017

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under sub-section (2), may take cognizance of any
offence-

(a)upon receiving a complaint of facts which
constitute such offence.”

(b) upon a police report of such facts;

(c)upon information received from any person other
than a police officer, or upon his own knowledge,
that such offence has been committed.

8. Therefore, this court does not find any illegality in

the impugned order passed by the court below .Accordingly, this

application is dismissed.

(Sanjay Priya, J)
singh/-

U T

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