Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.27794 of 2010 ====================================================== Ashok Kumar .... .... Petitioner/s Versus The State of Bihar & Anr .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr.Ganesh Chandra Thakur, Advocate. For the Opposite Party/s : Smt. Veena Kumari Jaiswal, Add. P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3 27-03-2012 Heard learned counsel for the petitioner as well as Additional P.P. Petitioner has challenged the order dated 08.06.2010 whereby and whereunder he along with others has been summoned to face trial for offences under [STATUTE] . by Shri Deshmukh, Judicial Magistate, 1st Class, at Birpur in T.R. No. 1154 of 2010/ C.R. No. No.166/2010. Contention on behalf of the petitioner is that though there happens to be disclosure with regard to manner of assault, but thereafter all the concerned PWs contradicted each other and in the aforesaid background, summoning of the petitioner along with two others under [STATUTE] . is bad and also submitted that because of the fact that story of theft has become falsified, therefore, the other part of occurrence also became doubtful. In the aforesaid background, Patna High Court Cr.Misc. No.27794 of 2010 (3) dt.27-03-2012 2 / 3 2 the order taking cognizance is liable to be set-aside. The Additional P.P. opposed the prayer and submitted that in consistency whatever may be, at the stage of enquiry under section 202 of the Cr. P. C. the prosecution is required only to place prima-facie case which is apparent from the order impugned. Inconsistency whatever may be is the matter of trial. The cognizance is not at all defined under the Cr.P.C. However it only connotes the application of judicial mind which can be applied, in a proceeding at different stages when the Court took judicial notice to the particular facts, in a proceeding. As such, when one confines the stage of the cognizance connected with summoning the accused that happens to be the stage governed in accordance with Section 204 of the Cr.P.C. which requires only opinion of the Magistrate over factum of the summoning the accused in the light of evidence so produced by the complainant during enquiry. That opinion should be based upon the materials so placed at the end of complainant during enquiry which could justify the order. So it should be traced out whether the Magistrate has gone through the material available on record and made up his mind whether the proposed accused should be summoned or not. At this juncture, it would be suffice to say that first of all the learned Magistrate took cognizance of an occurrence and then the accused are identified, who could be summoned on account of having been responsible for the commission of the act. Unless and until there happens to be inconsistency to such extent to belie the whole prosecution case or making the manner of occurrence improbable, order for summoning of Patna High Court Cr.Misc. No.27794 of 2010 (3) dt.27-03-2012 3 / 3 3 accused the accused should not be interfered with. Apart from this malicious prosecution or vagueness order is another theme to be taken into consideration. What Section is applicable, has to be judged at the stage of Section 246 Cr.P.C. the stage of trial and not at the stage of Section 204 of the Cr.P.C. Therefore, the order in its face did not attract interference. Consequent there upon the instant petition is rejected. Sudha/ (Aditya Kumar Trivedi, J)

Applicable IPC Section: 379

Statute Text:
Section 379 of the Indian Penal Code. Theft. Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.