IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.31556 of 2008 1. SHEIKH KHALIL, SON OF LATE SHEIKH TURAE 2. SHEIKH NASIM, SON OF SHEIKH KHALIL 3. SHEIKH WARIS ALI @ MD. WARIS ALI, SON OF LATE SHEIKH AKIL 4. SHEIKH LATIF, SON OF LATE SHEIKH ROZID 5. SHEIKH SANIF, SON OF LATE SHEIKH LATTU 6. SHEIKH SAFIL, SON OF LATE SHEIKH ASGAR 7. MD. HASIM, SON OF LATE SHEIKH GUDARI ALL RESIDENT OF VILLAGE RAMPUR KODARKATTI, TOLA DIYAGANJ, P.S. DISTRICT ARARIA. ----- PETITIONERS Versus THE STATE OF BIHAR ----- OPPOSITE PARTY ----------- 2 19.11.2009 Heard the parties. The petitioners are aggrieved by the order dated 12.6.2008 passed by the Judicial Magistrate, 1st Class, Araria in G.R. No. 337/2006 arising out of Araria P.S. Case No. 61/2006 by which his application for discharge has been rejected on the ground that the Judicial Magistrate, 1st Class, Araria has stated that he does not have the power to interfere in the order whereas cognizance has already been taken against the petitioners. The facts are that the petitioner no. 1 filed Araria P.S. Case No. 30/2006 under Sections 147, 323, 467 and 420 of the Indian Penal Code. In that case the police submitted final form however, the Court by order dated 15.3.2007 took cognizance for offences under Section 323 against the named accused persons. While submitting the final form the Officer Incharge, Araria had on the recommendation of the Superintendent of Police directed that proceedings under Section 182/211 of the Indian Penal Code should be instituted against the petitioner. The First Information Report is annexed as annexure/1 from which it would be clear that the Superintendent of Police by letter no. 3/2006 dated 11.3.2006 and memo no. 766 dated 25.2.2006 2 had directed the Officer Incharge to institute a case and accordingly G.R. Case No. 337 of 2006 was instituted under Section 182/211 of the Indian Penal Code on 13.3.2006. It would be apparent that the Judicial Magistrate has already taken cognizance in the main case i.e. Araria P.S. Case No. 30/2005 by order dated 15.3.2007 and, therefore, the case under Section 182/211 would basically not be maintainable against the petitioner as the Judicial Magistrate has differed with the opinion of the Officer Incharge who has submitted the final form and taken cognizance in this case. Section 182 of the Indian Penal Code envisages that whoever gives to any public servant any information which he knows believes to be false, intending thereby to cause or knowing it to be likely that he will thereby cause, such public servant- (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or (b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extent to six months, or with fine why may extend to one thousand rupees, or with both. Similarly Section 211 of the Indian Penal Code envisages that whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding againt that person, or falsely charges any person with having committed an 3 offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, [imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. In the present case on the information given by the petitioners led to an institution of Araria P.S. Case No. 30/2005 which has not found to be false in totality and cognizance has been taken in this case, as such it cannot be said that prima facie offences are made out under Sections 182 and 211 of the Indian Penal Code. I find that the order refusing to discharge the petitioners is bad for two reasons. Firstly, the Court below ought to consider the facts of the case and if the Court had considered the facts relating to this case, the Court could not have, come to the conclusion that there was in fact an offence made out against the petitioners under Sections 182 and 211 of the Indian Penal Code. In the result the order dated 12.6.2008 passed in G.R. Case No. 337/2006 passed by the Judicial Magistrate, 1st Class, Araria is quashed. This application is allowed. Sanjay (Sheema Ali Khan, J.)