Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.43894 of 2008 ====================================================== Someshwar Mishra @ Sameshwar Kumar Mishra , son of Late Sharda Nand Mishra, resident of Village-Chatia, P.S. Malahi, District-East Champaran .... .... Petitioner Versus The State Of Bihar .... .... Opposite Party ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR C.A.V. ORDER ------------------ 6 05-11-2012 The sole petitioner, while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure , has prayed for quashing of an order dated 04.06.2008 passed by the learned Chief Judicial Magistrate, Motihari ( East Champaran) in Govindganj (Malahi) P.S.Case No.137 of 2007. By the said order, the learned Chief Judicial Magistrate has taken cognizance of offence under [STATUTE] against the petitioner and other accused persons. In the present petition, a peculiar plea has been taken on behalf of the petitioner, while assailing the order dated 04.06.2008 passed by the learned Chief Judicial Magistrate, Motihari in Govindganj( Malahi) P.S. Case No.137 of 2007, whereby the learned Chief Judicial Magistrate has taken cognizance of offence under [STATUTE] differing with the police report. The police submitted report for the offence under [STATUTE] in respect of the petitioner and other F.I.R. named accused persons were exonerated by the police. A point has been raised that since the police after investigation had submitted a report showing commission of non-cognizable offence, the learned Magistrate was not authorized to take cognizance of Patna High Court Cr.Misc. No.43894 of 2008 (6) dt.05-11-2012 2 / 9 2 offences on such report since in case of non-cognizable offence , the learned Magistrate was required to adopt the procedure, which is prescribed for complaint proceeding. Short fact of the case is that on the basis of a written complaint submitted before the Officer Incharge of Govindganj ( Malahi) Police Station by one Vijay Thakur, an F.I.R. vide Govindganj ( Malahi) P.S. Case No.137 of 2007 for the offence under [STATUTE] was registered on 29.12.2007.It was alleged by the informant that he was proceeding with his tractor loaded with sugarcane and as soon as he reached near the house of the petitioner, the sugarcane loaded on the tractor dashed with Verandah of the petitioner causing damages to some tiles, whereupon all the seven F.I.R. named accused persons abused and assaulted the informant. In the said occurrence, one of the co-accused snatched Rs.5000/- from the pocket of the informant. However, after the co-villagers had arrived, the informant was rescued. After investigation, the police submitted report only for non- cognizable offence under [STATUTE] . However, the learned Magistrate by the impugned order i.e. order dated 04.06.2008 differing with the police report took cognizance of offence under Sections 341,323, 504/34 of the Indian Penal code against all the F.I.R. named accused persons. Aggrieved with the order of cognizance, the petitioner has approached this Court by filing the present petition. It has been indicated in the petition that against the order of cognizance, other accused persons had preferred a revision before the learned Sessions Judge, Motihari (East Champaran) vide Cr.Revision no. 326 of 2008, which was dismissed on Patna High Court Cr.Misc. No.43894 of 2008 (6) dt.05-11-2012 3 / 9 3 09.09.2008 by the learned Sessions Judge, Motihari ( East Champaran), a copy of the order dated 09.09.2008 has been enclosed as Annexure-1 to the present petition. Sri Uma Kant Shukla, learned counsel, who was assisted by Sri Shakti Suman Kumar, learned counsel for the petitioner has raised an objection that since the police had submitted final report for the offence under [STATUTE] , which is a non-cognizable offence, the learned Magistrate was not authorised to proceed with the case treating the report as police report under Section 173 of the Code of Criminal Procedure. According to Sri Shukla, the report submitted by the police was a complaint within the meaning of Section 2(d) of the Code of Criminal Procedure. According to Sri Shukla, in such event the learned Magistrate was required to adopt the procedure prescribed for cases instituted otherwise than on police report. Accordingly, it was prayed to quash the order of cognizance on this ground alone. No further plea has been taken for assailing the order of cognizance. Sri Prasoon Sinha, learned Govt. Advocate no.2, who was assisted by Smt. Anuradha Singh, learned Addl. Public Prosecutor, has appeared in this case on the request made by the Court for rendering proper assistance. Sri Sinha, learned Govt. Advocate no.2 at the very outset has argued on the point as to whether it was a police report under Section 173 of the Code of Criminal Procedure or it was a complaint, the learned Magistrate was having jurisdiction to take cognizance of the offence under Section 190 of the Code of Criminal Procedure. According to Sri Sinha, since the learned Magistrate was well competent to take cognizance of the offence even differing with the police report, the plea of learned counsel for Patna High Court Cr.Misc. No.43894 of 2008 (6) dt.05-11-2012 4 / 9 4 the petitioner that it was a complaint within the meaning of Section 2 (d) of the Code of Criminal Procedure has got no force. Sri Sinha, learned Govt. Advocate no.2 has relied on an Apex Court Judgment reported in (2001) 2 SCC 245; State of Bihar Vs.Ganesh Choudhary & Ors. He submits that similar plea was taken in the said case before the High Court against the order of cognizance, which was allowed by this Court and the State of Bihar had assailed the order of the High Court be

Applicable IPC Section: 341

Statute Text:
Section 341 of the Indian Penal Code. Wrongfully restraining any person. Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.