IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL REVISION No.326 of 2002 (Against the order dated 16.4.2002 passed by Sri Y. N. Tripathi, learned Judicial Magistrate, Ist Class, Motihari in Complaint Case No. 446 of 2001, Enquiry No. 24 of 2002) ====================================================== Hari Shankar Singh s/o Ram Chandra Singh, of village Ibrahimpur, P.S. Paharpur Distt. East Champaran. …. …. Petitioner Versus 1. State Of Bihar 2. Birendra Singh s/o Sri Sudama Singh of village- Ibrahimpur, P.S. Paharpur, Distt. East Champaran .... .... … Opp. Parties. ======================================================= Appearance : For the Petitioner : Mr. Sangeet Deo Kuliar, Adv. For the O. P. No.2 : None For the State : Mrs. Indu Bala Pandey, APP ======================================================= CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Amaresh Kumar Lal, J. The accused-petitioner has preferred this revision application against the order dated 16.4.2002 passed by learned Judicial Magistrate, 1st Class, Motihari in Complaint Case No. 446 of 2001, Enquiry No. 24 of 2002 by which a prima facie case has been found against the accused including the petitioner Patna High Court CR. REV. No.326 of 2002 dt.02-08-2011 2 for the offence punishable under Sections 147, 148, 504, 506, 323 and 427 IPC and an order has been passed for issuance of summons against them. 2. Heard learned counsel for the petitioner and learned A.P.P. for the State. 3. The prosecution case, in brief, is that opposite party no. 2, Birendra Singh, filed complaint case no. 446 of 2001 alleging inter alia that on 11.4.2001 at 1 P.M., the petitioner, Hari Shankar Singh and some anti social elements came at the booth Nos. 166, 167, 168 with his supporters and knowing that majority of voters cast their votes in favour of Symbol “Kitab”, they got infuriated. Aditya Narain Singh, elder brother of the petitioner asked to pour water in all the ballot boxes. Thereafter, the supporters of the petitioner looted the ballot boxes. The polling agents protested the same, on which they indulged in assault and fled away after taking the ballot boxes. The further prosecution story is that Hari Shankar Singh (petitioner) misbehaved with the officials and election staff and the accused poured water into the boxes. Hari Shankar Singh started Patna High Court CR. REV. No.326 of 2002 dt.02-08-2011 3 sprinkling kerosene oil on the Presiding Officer of booth no. 167. Any how the Presiding Officer and other polling staffs saved their lives by fleeing away. Another candidate for the Office of Mukhia, Birendra Singh, complainant-opposite party no. 2 got information about the same at booth No. 169 and he rushed there and thereafter he was attacked by the petitioner and others. Birendra Singh fled away to save his life. The complaint petition to this effect was filed in the Court of learned Chief Judicial Magistrate which was transferred to the learned Magistrate under Section 192 Cr.P.C. Vide order dated 16.4.2001. On 26.4.2001 statement of the complainant was taken on solemn affirmation and he was directed to produce other witnesses. Thereafter, four witnesses were examined on behalf of the complainant. After enquiry the impugned order has been passed. 4. Learned counsel for the petitioner submits that on filing of the complaint, the learned Magistrate was not satisfied with the allegation of the complainant. Thus, instead of issuing process Patna High Court CR. REV. No.326 of 2002 dt.02-08-2011 4 chose to hold an enquiry under Section 202 Cr.P.C. and also directed for an investigation by local police inasmuch as to submit the report by local police. The Police investigated the matter and did not find any material to show the complicity of the petitioner or any other accused in the alleged occurrence. The Police has found allegation with respect to the disturbances at polling stations to be true but the same to be done by unknown anti social elements. He has further contended that holding enquiry under Section 202 Cr.P.C. and also ordering for investigation by the police are not in accordance with law. Admittedly, as per the complaint, the complainant is not an eye witness to the occurrence except the allegation to assault him. He has not even indicated by whom he got information regarding the disturbances at the polling booths. No offence under Section 504 I.P.C. is made out against the petitioner and therefore he has assailed the impugned order. 5. Learned A.P.P. for the State submits that it appears from the record that the complaint petition was filed in the Court Patna High Court CR. REV. No.326 of 2002 dt.02-08-2011 5 of learned Chief Judicial Magistrate on 12.4.2001. On 17.4.2001 the case was transferred to the Court of Sri Y. N. Tripathi, learned Judicial Magistrate, Ist Class under Section 192 Cr.P.C. for enquiry and disposal. On 26.4.2001, learned Magistrate has examined the complainant on solemn affirmation and thereafter directed the complainant, opposite party no. 2 to produce other witnesses. Altogether four witnesses have been examined on behalf of the complainant. It appears that the complainant as well as the witnesses produced on behalf of the prosecution have supported the case of the complainant and a prima facie case has been found against the accused including the petitioner to have committed offence vide order dated 16.4.2002, the impugned order. 6. Learned A.P.P. further submitted that at the stage of issuance of summons, the learned Magistrate is not required to scrutinize the evidence as if he was a trial court. The learned Magistrate is only required to see as to whether a prima facie case is made out against accused or not. 7. After hearing learned counsel Patna High Court CR. REV. No.326 of 2002 dt.02-08-2011 6 for both the parties and on perusal of materials on record, it appears that the contention of the learned A.P.P. for the State is correct. The complaint case No. 446 of 2001 was filed by complainant, opposite party no. 2 in the Court of learned Chief Judicial Magistrate on 12.4.2001. Vide order dated 17.4.2001, the learned Chief Judicial Magistrate was pleased to transfer the case to the Court of learned Judicial Magistrate, 1st class under Section 192 Cr.P.c. for enquiry and disposal. It further appears that on 26.4.2001, the learned Magistrate has recorded the statement of complainant on solemn affirmation and thereafter the complainant has produced four witnesses in support of the complaint case. P.W. 1, Anil Tiwari, P. W. 2, Vijay Singh, P.W. 3, Brij Mohan Tiwari, and P. W. 4, Duryodhan Mahto. It appears that the learned Magistrate has also made query from the complainant as well as the witnesses. They have supported the prosecution case. After considering their evidence, the learned Magistrate has found a prima facie case against the petitioner as well as other accused vide his impugned order and an order Patna High Court CR. REV. No.326 of 2002 dt.02-08-2011 7 has been passed for issuance of notice against them. 8. It is well settled principle of law that at the time of taking cognizance, the learned Magistrate is not required to weigh the evidence as a trial court and it is also not required to see as to whether the evidence would lead to conviction of the accused or not. The learned Magistrate is required to see as to whether a prima facie case is made out against the accused and there is sufficient ground for proceeding against the accused or not. A reference in this connection may be made to a decision in the case of Rajeshwar Sah vs. Lalan Singh & others, reported in 1997(2) PLJR 958. 9. Considering the facts and circumstances of the case, I do not find any ground to interfere with the impugned order. This revision application is dismissed. Patna High Court, Patna Dated 2nd August, 2011 N.A.F.R/Kanchan (Amaresh Kumar Lal, J.)