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
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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
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
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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
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
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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