IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32962 of 2007 NARENDRA UPADHYAY, S/O SHRI RAMBRIKSH UPADHYAY, RESIDENT OF VILLAGE-KOHARI, P.S. BHABUA, DISTRICT- KAIMUR, AT PRESENT-BHABUA, WARD NO.6, P.S. BHABUA, DISTRICT-KAIMUR………………………………………..PETITIONER. Versus 1. THE STATE OF BIHAR. 2. ASHUTOSH DUBEY @ ASHOK KUMAR DUBEY, S/O RAM NIDHI DUBEY @ LAL BABA, RESIDENT OF BHABUA, WARD NO.6, P.S. BHABUA, DISTRICT-KAIMUR. ………………………………………………………OPPOSITE PARTIES. ----------- 3. 11.11.2008. Heard Dr. Amarendra Kumar, the leaned counsel for the petitioner, Sri Narendra Kumar, the learned counsel for O.P. No.2 and Sri Jharkhandi Upadhayay, the learned A.P.P. for the State. The petitioner herein who is the informant of Bhabhua P.S. Case No.362 of 2005 has prayed for the quashing of the order dated 18.5.2007 passed by Sri Jagarnath Rai, the learned Presiding Judge, Fast Track Court No.V, Kaimur at Bhabhua whereby he has set aside the cognizance taken under Sections 307 and 379 I.P.C. and Section 27 of the Arms Act by the learned Chief Judicial Magistrate, Kaimur at Bhabhua. It appears that after investigation the police submitted charge sheet only under Sections 341, 323, 504, 506/34 I.P.C. with an endorsement that the alleged offences under Sections 307 and 379 I.P.C. as also under Section 27 of the Arms Act were not found to be true. However, the learned Chief Judicial Magistrate while taking cognizance on perusal of the police papers and case diary submitted with the charge sheet formed an opinion thereupon that the offences - 2 - under Sections 307 and 379 I.P.C. as also under Section 27 of the Arms Act had been made out and took cognizance thereunder apart from the offences whereunder the charge sheet had been submitted. Admittedly, from the evidence, it is apparent that firing by katta had been resorted to by the accused although no firearm injuries were sustained by the informant as the fire missed its mark. However, the accused is alleged to have assaulted the informant thereafter with the butt of his katta. For an offence under Section 307 I.P.C. it is not essential that bodily injury capable of causing death should have been inflicted, it is the intention of the accused which becomes relevant. The court is required to see whether the act, irrespective of the result, was done with the intention or knowledge and under the circumstances mentioned in the Section. Apparently, the revisional court was remiss in considering this angle and appears to have been swayed by the nature of injury sustained by the informant. The offence of theft has been reiterated by the informant in his further statement. In the circumstances and in view of the discussions made above the offences under Sections 307 and 379 I.P.C. and 27 of the Arms Act prima facie appear to have been made out. At the stage of taking cognizance the court not required to see whether the offences can be proved. He is only required to see whether from the materials available before him the offences alleged can be said to have been committed prima facie. - 3 - Due regard being had to the facts and circumstances of the case, the impugned order of the revisional court is set aside and the order of the learned Magistrate dated 13.1.2007 taking cognizance is restored. P.S. (Abhijit Sinha,J)