IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38962 of 2007 PANNA KUMAR SINGH @ PANNA SINGH S/O LATE BUDHDEO PRASAD SINGH, KASMARA, DHAMDAHA, PURNEA. Versus 1. STATE OF BIHAR & 2. FUDIA DEVI W/O DOMI SAH, BISHANPUR, SONBARSA, SAHARSA.ANR ----------- 7. 29.01.2010. Heard learned counsel for the parties. The petitioner has come to this Court for quashing order dated 24.12.2004, passed by the Chief Judicial Magistrate, Saharsa in Complaint case no. 766C of 1999 by which cognizance had been taken for offence under sections 323,325,343,304 and 109 of the I.P.C. against him and three others. The petitioner submits that he had earlier moved this Court vide Cr. Misc. No. 24264/2005 which was dismissed as withdrawn vide order dated 18.4.2006 with liberty to raise his points before the court below at the time of framing of charge. Learned counsel submits that he has again moved this Court for in view of subsequent judgment of this Court rendered in case of Murari Lal Sharma Vs . the State of Bihar and another, reported in 2007(1) PLJR 400. In the aforesaid case, cognizance taken under section 326 I.P.C. against the petitioner, (a police officer) of inflicting injury to the accused persons in course of his arrest was quashed observing that one can be prosecuted if dangerous weapons like poison, corrosive or explosive substance has been used. However, this Court observed that where there is neither any such allegation nor any grievous injury found by the doctor, cognizance taken under section 326 I.P.C. is illegal and bad in law. - 2 - He submits that in the aforesaid case, the entire prosecution arising out of complaint case against the petitioner was quashed as the court held that actually the opposite party received injury in course of arrest in connection with criminal case, apart from the nature of injury being simple and thus the petitioner was protected under section 197 Cr.P.C. Learned counsel submits that it would appear from complaint case, annexure 2 that the deceased boy Mantu Kumar was arrested by the petitioner on 8.7.1999 in a case under sections 328, 304B/34 I.P.C. and on the same day he was remanded to judicial custody by order of the Chief Judicial Magistrate, Saharsa. He states that order of the Chief Judicial Magistrate would not show that the petitioner suffered any injury or that he made any complaint of any assault. However, he died on 14.8.1999 i.e. after 36 days of his arrest and remand. He submits that post mortem report would show that the deceased boy died on account of head injury within 36 hours of the date of examination on 14.8.1999. Learned counsel submits that there is no evidence that the petitioner assaulted the deceased either prior or after his remand on 8.7.1999. Learned counsel appearing for the opposite party number 2 refers to annexure 4, the Fard beyan of Dinesh Mahto who was physical instructor of Remand Home, Purnea which was recorded by Sub Inspector on 14.8.1999 at 10.35 am. It would appear from the aforesaid report of Dinesh Mahto that the petitioner was sent to Remand Home, Purnea on 9.8.1999. On 8.9.1999 he was imbued - 3 - with illness. The report would further show that the petitioner was weak and suffering from illness from before on 8.8.1999. He was referred to Hospital in unconscious stage on 8.8.1999, from where he was released after recovery on 9.8.1999. Again on 13.8.1999 he fell ill while he had gone to attend the call of nature where after he did not resume the consciousness and died. Having heard the parties, this Court is of the view that once the petitioner on his own has sought for withdrawal of the application with liberty to move the appropriate court at the time of framing of charge, he ought to avail the same remedy instead of moving this court again in quashing application against order taking cognizance. This application as such is disposed of with liberty to the petitioner to take all these points at the time of framing of charge. Shashi. (Samarendra Pratap Singh,J.)