Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.17990 of 2010 ====================================================== Seikh Anas son of Seikh Bakhat Ali, resident of Village-Rampur Patania, Police Station-Biraul, District-Darbhanga. .... .... Petitioner Versus 1. The State Of Bihar. 2. Hamida Begum wife of Seikh Salim, resident of Village-Rampur Patania, P.S.-Biraul, District-Darbhanga. .... .... Opposite Parties ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL ORDER 5 01-10-2012 Heard learned counsel for the petitioner and the learned Additional Public Prosecutor for the State. This application under Section 482 of the Code of Criminal Procedure is to quash the order dated 05.04.2010 passed in Complaint Case No. 09 of 2010 by Sri S.K. Gupta, Judicial Magistrate, 1st Class, Biraul at Benipur, summoning the all accused named in the complaint petition including the petitioner, on enquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under [STATUTE] . Learned counsel appearing on behalf of petitioner firstly made submission that once after filing the complaint petition by opposite party no. 2 the Sub Divisional Judicial Magistrate, Biraul at Benipur took the cognizance of the case on Patna High Court Cr.Misc. No.17990 of 2010 (5) dt.01-10-2012 2/3 recording the S.A. of the complainant/opposite party no. 2 on 13.01.2010 and send the record to the Court of Sri S.K. Gupta, Judicial Magistrate, 1st Class, Biraul at Benipur for enquiry and disposal. Thereafter the learned Judicial Magistrate, 1st Class has found prima facie case under [STATUTE] through the impugned order, which would amount to taking cognizance of offence second time which is bad in law. The learned counsel for the petitioner further submitted that the uncle of the husband of opposite party no. 2 has already filed two criminal cases against the petitioner and other accused named in the complaint petition, in which they have been acquitted and the present complaint case has been filed only to harass the petitioner and others. On perusal of the record, it appears that after filing the complaint petition by opposite party no. 2 the Sub Divisional Judicial Magistrate, Biraul at Benipur recorded the S.A. of the complainant/opposite party no.2 on 13.01.2010 and transferred the record to the Court of Sri S.K. Gupta, Judicial Magistrate, 1st Class for enquiry and disposal. Thereafter, the learned Judicial Magistrate, on enquiry under Section 202 of the Code of Criminal Procedure, summoned the accused named in the complaint petition including the petitioner on 05.04.2010, under Section 204 of the Patna High Court Cr.Misc. No.17990 of 2010 (5) dt.01-10-2012 3/3 Code of Criminal Procedure finding prima facie case under [STATUTE] . The impugned order is not the cognizance order rather this is the summoning order under Section 204 of the Code of Criminal Procedure, which is permissible in law. As far as the submission is concerned i.e. defence of the petitioner, which could not be considered in inherent jurisdiction under Section 482 of the Code of Criminal Procedure. Accordingly, this application is dismissed. However, the petitioner would be at liberty to raise all defence, raised herein, at appropriate stage in trial court. Safik/- (Rajendra Kumar Mishra, J)

Applicable IPC Section: 323

Statute Text:
Section 323 of the Indian Penal Code. Voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.