IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44102 of 2007 VINAY SHARMA son of late Suresh Chandra Singh, resident of village + P.O. Kanchanpur, P S – Bihta, in the district of Patna. Versus 1. STATE OF BIHAR 2. Kedar Prasad @ Vidyanand Prasad, son of sachidanand Yadv, resident of Pokhariya, P S – Haweli Kharagpur, District - Munger ----------- For the petitioner : M/S Praveen Kumar and Rajeev Shankar. For O.P. No. 2 : Mr. Neeraj Kumar Singh. ------------ 04. 01.05.2009. An order dated 29th May, 2007 came to be passed by Shri Dipak Kumar Sinha, Additional Sessions Judge, Fast Track Court No.2, Munger in Criminal Revision No. 244 of 2003. The revision in question was filed by the petitioner against an order dated 28th April, 2003 which was an order of the learned Judicial Magistrate, Ist Class, Munger by virtue of which he took cognizance against the petitioner under section 323 of the Indian Penal Code which arose out of Kharagpur P.S.Case No. 9 of 2003. The petitioner, therefore, wants quashing of both the orders under section 482 of the Code of criminal Procedure. The primary contention on behalf of the petitioner is that the present case is a malicious prosecution initiated by the opposite party No.2 as a retaliatory action when earlier an FIR was lodged by him against opposite party no.2 which is Kharagpur P S Case No.265 of 2002 dated 3.12.2002. The said FIR was investigated and chargesheet filed. Almost a month thereafter a complaint dated 6.1.2003 came to be filed against the petitioner by opposite party no.2 alleging certain things against him. The complaint was registered as an FIR under the - 2 - direction of the court and matter investigated. On investigation the police decided to file a final form in favour of the petitioner stating therein that though some kind of event had taken place but the same did not amount to substantive offence against the petitioner. Learned court of the Judicial Magistrate did not agree with the final form submitted by the police and took cognizance against the petitioner vide order dated 28.4.2003 under section 323 of the Indian Penal Code. Petitioner as per the legal advice decided to challenge the said order taking cognizance and filed a revision and the revisional court upheld the order of the Magistrate and revision stood dismissed. The legal submission which has been made on behalf of the petitioner is that narration of the events show that it was a malicious prosecution and a retaliatory action. In addition to that it is also submitted that no offence prima facie under section 323 IPC is made out from the complaint or the allegation. For the offence under section 323 there is to be hurt as defined under section 319 IPC and in the present case evidence is that petitioner is supposed to have swung his fists an slaps but there is nothing to show that it reached the target or caused any bodily pain to the complainant opposite party no.2. If the basic ingredients are not made out then no cognizance of the offence ought to have been taken. Learned counsel further submits that while disagreeing with the final form filed by the police, the Magistrate did not apply his judicial mind to the issue and mechanically took cognizance of the fact. If there was any application of judicial mind, the submission made at the bar in the present application would have - 3 - been obvious to the Magistrate but since a mechanical order came to be passed which was affirmed by the revisional court, petitioner has not been left with any option but to approach this Court under section 482 Cr.P.C. Learned counsel representing the opposite party submits that no reason is to be assigned nor a detailed order need to be passed by the Magistrate while passing an order taking cognizance and in this regard he relies on a decision rendered in the case of State of W.B. & another v. Mohd. Khalid and others, (1995) 1 SCC 684. It is further submitted that the matters will be decided during the trial and even revisional order is in consonance with the law. The Court has certain difficulty in accepting the submissions made on behalf of the opposite party for the reason that there is no cogent explanation with regard to some of the events which had transpired prior to the filing of the present case. It is also a fact that police had investigated the matter, came to a conclusion and if the Judicial Magistrate was of the opinion that he had to differ with the findings then there should have been some reflection in the order. In addition to the same it is also recorded that learned counsel for the petitioner seems to be correct that the ingredient of section 323 IPC is not made out and if the same is not made out, no cognizance of the so-called act or the offence can be taken. The Court has dealt with that aspect of the matter in the earlier part of the order and therefore, is inclined to allow the application on behalf of the petitioner. The two orders dated 29th May, 2007 as well as 28th April, - 4 - 2003 passed by the Sri Dipak Kumar Sinha, learned Additional Sessions Judge, Fast track Court No.2, Munger in Criminal Revision No. 244 of 2003 and the learned Judicial Magistrate, respectively stand quashed. The application is allowed. rkp (Ajay Kumar Tripathi, J)