Case Facts:
Patna High Court Cr.Misc. No.40662 of 2011 (2) dt.16-08-2012 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.40662 of 2011 ====================================================== 1. Ashok Kumar Sharma S/O Gulten Sharma. R/O Vill- Mohallah- Durga Asthan, Ward No.9, P.S- Rpsera. Dostt- Samastipur(Bihar) 2. Shankar Sharma S/O Gulten Sharma R/O Vill- Mohallah- Durga Asthan, Ward No.9, P.S- Rpsera. Dostt- Samastipur(Bihar) 3. Upendra Sharma S/O Gulten Sharma R/O Vill- Mohallah- Durga Asthan, Ward No.9, P.S- Rpsera. Dostt- Samastipur(Bihar) .... .... Petitioner/s Versus 1. The State Of Bihar 2. Braj Bhushan Prasad S/O Late Baldev Lal R/O Mohalla-Prabhu Thakur, Ward No.5,- Rosera, Distt- Samastipur(Bihar) .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. O.P. Pandey, Mr. Vinay Kumar Mishra, Advocates. For the Opposite Party/s : Mr. R.B. Roy Raman, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 2 16-08-2012 Heard learned counsel for the petitioners and learned counsel for the State. This application has been filed for quashing the order dated 9.4.2010 passed in Complaint Case No.847 of 2009 by the Sub Divisional Judicial Magistrate, Rosera, Samastipur by which he has taken cognizance against the petitioners under [STATUTE] . From the complaint petition it appears that while the victim was in his shop some unknown persons came and forcibly took him away under force and threat. After investigation the police has submitted charge-sheet but the Patna High Court Cr.Misc. No.40662 of 2011 (2) dt.16-08-2012 petitioners were not sent up for trial. The victim has moved this Court vide Cr. Misc. No.19687 of 2007 and this Court vide order dated 26.11.2007 has directed the court below to proceed on the basis of protest-cum-complaint petition and passed the order in accordance with law. Learned counsel for the petitioner has very fairly submitted that this order was not challenged before the higher court and as such it reached to its finality. It appears from the impugned order that on the strength of the direction of this Court the court below proceeded with the protest-cum- complaint petition in which Sunil Kumar alias Munna who is a victim was examined where the name of the petitioners has been surfaced. While taking cognizance the court has mentioned about statement recorded under section 164 of the Code of Criminal Procedure and also took motice of statement of other witness who were willing to support the case. Learned counsel for the petitioner has basically raised the grievance that while proceeding with the matter in the complaint petitioner, the court below was not required to look into the material that has been collected during investigation which vitiates the order of the cognizance. But it is an undisputed fact that the victim has taken Patna High Court Cr.Misc. No.40662 of 2011 (2) dt.16-08-2012 the name of the petitioners during enquiry. This Court is of the view that even deleting the portion with regard to noticing the statement of the case diary the situation will not change as prima facie it appears that the court has taken cognizance because the victim has taken their names. Learned counsel for the State has vehemently opposed the submission of learned counsel for the petitioners and submitted that the court below has adopted the right course in view of the order passed by this Court and the court has found materials for prima-facie case and has rightly taken cognizance. In this view of the matter, the court below has not committed any error. Even accepting the contention of the petitioners the position will remain the same. This Court does not find any merit in this application. Accordingly this application is dismissed. However, the petitioners will be at liberty to raise all the points before the court below at the appropriate stage of trial. Vinay/- (Shivaji Pandey, J)

Applicable IPC Section: 364A

Statute Text:
Section 364A of the Indian Penal Code. Kidnapping for ransom, etc. Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death or imprisonment for life, and shall also be liable to fine.