Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.16218 of 2011 ====================================================== Girja Nandan Pandey, S/O Dilsingar Pandey, R/O Vill. Sirisiya, Bholi Tola, P.S. Sirisiya, Distt. West Champaran .... .... Petitioner/s Versus 1. The State Of Bihar 2. Pintu Kuer, S/O Late Daya Shankar Kuer, R/O Vill. Sirisiya, P.S. Sirisiya West Champaran .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Umesh Chadnra Verma, Advocate. For the Opposite Party No.2:Mr. Dr. Amrendra Kumar No.1, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 3 07-11-2012 Heard learned counsel for thee petitioner, learned counsel for the State and learned counsel for opposite party no.2. This application has been filed for quashing the order dated 11.2.2011 passed in Criminal Revision No.200 of 2009 by the learned Additional Sessions Judge, West Champaran, Bettiah by which he has affirmed the order dated 31.8.2009 passed by the Judicial Magistrate, Ist Class, Bettiah, in Complaint Case No.2707-C of 2007 by which he has dismissed the complaint petition. Brief facts of the case is that an F.I.R. vide Chanpatiya (Sirisiya) P.S. Case No. 59 of 2007 for the offence under [STATUTE] was Patna High Court Cr.Misc. No.16218 of 2011 (3) dt.07-11-2012 2 instituted where the petitioner has been shown as a named accused. In the First Information Report it has been alleged that on 12.4.2007 at about 11.30 in the mid night while all the family members were sleeping, the accused persons broken the door and entered into the house and at the point of gun looted the valuable articles which was purchased in connection with the marriage of his nephew, namely, Bibhuti Kumar alias Tuntun. It has further been alleged that he identified the villager, namely, Pintoo Kuer but could not identify other accused persons and claimed, would identify them if they were brought before the court. The case was investigated by the police and the police submitted the final form where the police found, that the case lodged by the petitioner was false one. But a complaint case was filed where witnesses were examined and the court of Magistrate refused to take cognizance on the ground that in the case of murder of father of Pintoo Kuer the petitioner was/is the main accused and the present case that has been filed was/is malicious. That was challenged before the revisional court and the revisional court perused different paragraphs of the case diary affirmed the view of Magistrate taking note that the police Patna High Court Cr.Misc. No.16218 of 2011 (3) dt.07-11-2012 3 recommended for initiation of proceeding under sections 182 and 212 of the Indian penal Code against the petitioner. Learned counsel for the petitioner submits that the court of the Magistrate as well as revisional court has fallen in error in rejecting the complaint petition. They were not required to test the veracity statement made in the complaint petition but to see whether a prima facie case is made out or not. Merely the petitioner has been shown as main accused in case of murder of father of Pintu Kuer (opposite party no.2) that cannot be a ground to falsify the story of complaint petition and dismissed the complaint petition of the petitioner. He has further submitted that the allegation of malafide in double edge swords cut both ways and the court was required to decide the case on the principle of prima facie case whereas proof beyond the reasonable doubt is the test at trial stage. Learned counsel for opposite party no.2 has controverted the submissions of learned counsel for the petitioner and has submitted that both the courts have not committed any error and has rightly refused to take cognizance. Having considered the rival contentions of learned Patna High Court Cr.Misc. No.16218 of 2011 (3) dt.07-11-2012 4 counsel for the parties, it appears that both the courts have fallen in error and acted with material irregularity. At the stage of taking cognizance test of prima facie applies and the court at the stage of framing of charge will be required to see grave suspicion but here the court has meticulously examined the material and refused to take cognizance merely on the ground that the petitioner has been shown as main accused in the case of murder of father of Pintu Kuer (opposite party no.2). This Court finds that both the courts have committed illegality and both the orders dated 11.2.2011 and 31.8.2009 are set aside and case is remanded to the court below to pass a fresh order. The court below is directed to pass order within one month from the date of receipt/production of a copy of this order. Accordingly this application is allowed with the aforesaid observation. Vinay/- (Shivaji Pandey, J)

Applicable IPC Section: 395

Statute Text:
Section 395 of the Indian Penal Code. Dacoity. Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.