IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.18040 of 2010 Rekha Sinha Versus The State Of Bihar & Anr ----------- 3/ 16/11/2011 Heard learned counsel for the petitioner, learned counsel for the O.P. No.2 as well as learned Additional P.P. for the State. 2. Petitioner has challenged the order dated 15.4.2009 whereby and whereunder she along with others has been summoned to face trial for an offence punishable under Section 323, 504 of the IPC. 3. It has been submitted on behalf of the petitioner that the status of both the parties is admitted one and because of the fact that the petitioner had deposited all the amount in the Department which was allotted for construction of school building on account of which complainant could not be able to withdraw illegally for her personal gain since thereafter, she has been subjected to harassment at the hands of complainant. Lastly, as per Annexure-16, she was deputed at the head office and was accordingly, relieved on 24th February 2006 from the school concerned. Afterwards, the complainant with false and frivolous allegation got this case filed. Whatever allegation has been levelled, all have been 2 negativated by the learned lower court itself. Part of occurrence, for which, she has been summoned could not have been testified by other witnesses as possibility of their presence happens to be bleak. Also submitted that even if allegation is accepted for argument sake it relates to just pushing the complainant which does not attract even application of Section-323. So far 504 is concerned, that too is not attracted in the background of the allegation. So submitted that summoning of the petitioner is bad. 4. On the other hand, learned counsel appearing for O.P. No.2 submitted that during course of an enquiry as conducted u/s 202 Cr.P.C., the Court has to see a prima facie case irrespective of allegation whatever been made in complaint. Therefore the action of the court is fully justifiable. 5. Learned Additional P.P. endorsed the submission advanced on behalf of the O.P. No.2. 6. It is settled at rest by catena of decision that at the time of taking of cognizance mere suspicion is found to be sufficient and for that a reference may have 2006 Cr.L.J. 2096, wherein it has been held as follows while distinguishing the appreciation of evidence at the stage of cognizance as well 3 as framing of charge:- “16. Thus, there are differences between “taking of cognizance” and “framing of the charge”. Of course, both the acts require the application of judicious mind. However, the former is done without hearing both the parties. Cognizance is taken without the accused being heard. The latter is done after hearing both the parties. In the former, the Judge examines the evidence to see if any offence has been committed. In the latter the Judge examines the commission of the alleged crime by the accused. In the former, mere „suspicion about the commission of the an offence‟ is enough for taking of the cognizance. In the latter, “grave suspicion about the commission of the crime by the accused” should exist before a charge can be framed. In the former, the Judge is not supposed to sift through the evidence. In the latter, a limited sifting of the evidence is permissible. Therefore, when the phrase “prima facie evidence ” is used, it is used for two different sets of examinations at two different stages of the criminal process. One has to realize that the trial progresses through different stages. Hence, appreciation of evidence has to be of different quality, While at the stage of cognizance it is mere „suspicion‟, at the stage of framing of charge it is „grave suspicion‟, and at the end of trial, it is a critical analysis and a meticulous examination of the entire evidence produced by the prosecution and the accused‟. Therefore, the appreciation of evidence at the stage of framing of charges is at micro level; at the end of the trial it is at macro level. Hence, the mental level of appreciation changes at every stage of the criminal process: from a cursory appreciation to a critical one.” 7. However, there appears to be certain limitation on this score which could justify its revocation as has been laid down in a famous case reported in a decision AIR 1992 4 SC 604 State of Hariyana & Ors. Versus Bhajan Lal & Ors. The Hon’ble Apex Court has identified following categories including others wherein prosecution can be quashed and those are :- “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as 5 contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 9. In the background of aforesaid settled principle of law, now it has to be seen whether the impugned order is justifiable or not. For that purpose when the compliant (Annexure-1) along with statement of witnesses (Annexure-4) 6 has been gone through, a prima facie case comes out. So far other aspects are concerned, those happen to be matter of facts which could be scrutinized only in due course of trial. 10. As such, I find no merit in this petition and is, accordingly, rejected. However, it will be open to the petitioner to raise her plea during the course of conduction of trial. perwez (Aditya Kumar Trivedi,J.)