IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48041 of 2006 BHUSHAN SINGH @ SHASHI BHUSHAN SINGH, SON OF LATE PASHUPATI PRASAD SINGH, RESIDENT OF VILLAGE-BELSANDI TARA, P.S. BIBHITIPUR, DISTRICT-SAMASTIPUR. ………………………………………………………………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. UMESH KUMAR, SON OF SRI SADHU SHARAM MAHTO, RESIDENT OF VILLAGE BELSANDI TARA, P.S. BIBHUTIPUR, DISTRICT-SAMASTIPUR. ………………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : Mr. Mukesh Kumar No.3, Advocate. For the State : Dr. Mayanand Jha, A.P.P. For O.P. No.2 : None. ------------ O R D E R The petitioner, one of the accused of Bhibhutipur P.S. Case No.70 of 2003, has prayed for the quashing of the order dated 22.5.2006 passed therein by the learned Sessions Judge, Samastipur, Camp at Rosera, in Criminal Revision No.10 of 2006, whereby he has affirmed the order dated 11.11.2005 passed by the learned Additional Chief Judicial Magistrate, Rosera, in the aforesaid police case whereunder the learned Magistrate had taken cognizance for offences under Sections 144, 379 and 427 I.P.C. against the accused persons including the petitioner. The aforesaid case was lodged on the basis of a written report submitted by one Umesh Kumar, impleaded herein as O.P. No.2, who alleged inter alia that at about 12 noon on 14.5.2003 the petitioner along with other co-accused variously armed with lathi, - 2 - danda and gun assembled in his litchi orchard measuring 4 bighas, 13 kathas, 14 dhoors appertaining to khata/plot no.675/1557 and on receiving information thereof from one Lalbabu Mahto, he rushed towards the orchard and saw the petitioner alongwith others plucking the litchi crop and on seeing the informant the accused petitioner pointed his gun at the informant who out of fear fled raising alarm. However, the petitioner is said to have opened fire. It is said that on hearing the sound of firing other pattadars and others arrived but by then the accused persons had picked the litchi crop from 10 trees and some mangoes and fled away. As a result of the alleged theft the informant claims to have suffered a loss of Rs.5000/-. After due investigation the police submitted a chargesheet under Sections 144, 379 and 427 I.P.C. against all the accused including the petitioner and the learned Additional Chief Judicial Magistrate, Rosera, took cognizance thereupon. A revision being Criminal Revision No.10 of 2006 was preferred before the learned Sessions Judge, Samastipur which was dismissed by order dated 22.5.2006. It has been submitted by the learned counsel for the petitioner that he is the rightful owner of the orchard in question although the informant claims to be a pattadar of the alleged orchard. It was submitted that no mention has been made as to from whom the informant had received the patta though in course of investigation it came to light that one Satyawati Kunwar/Anupurna Devi might have executed a patta in favour of the informant. It has further been - 3 - submitted that Satyawati Kunwar happens to be the wife of Late Gangadhar Prasad Singh alias Ganesh Prasad Singh, a pattidar of the petitioner and he has been litigating with the petitioner since 1995. A reference has also been made to a proceeding under Section 144 Cr.P.C. wherein the land was declared to be in the possession of the petitioner and although the court of the learned Sub Divisional Judicial Magistrate had ordered the sale proceeds to be handed over to the petitioner but subsequently under the influence of the said Satyawati Kunwar, the second party to the litigation, the said order was changed ex-parte on 31.7.1995 and it was ordered that the sale proceeds be handed over to the second party. The said order was challenged in the High Court in Criminal Misc. No.12330 of 1995 which was allowed vide order dated 6.12.1995 and the matter was remitted back for passing fresh orders. The petitioner has referred to several other litigations between the parties to prove his bonafide possession over the lands. A reference was also made to the order dated 28.5.2003 passed by the learned Sessions Judge, Samastipur, in A.B.P. No.195 of 2003 preferred by the petitioner in respect of the instant police case, a copy whereof is appended to the application as Annexure-12, wherein it was held that it was a matter of bonafide land dispute. On the aforesaid premise the petitioner has prayed for the quashing of the order passed by the learned Magistrate and the consequential order passed in the Criminal Revision. The informant-opposite party no.2 was duly served with notice and notwithstanding the valid service thereof he has preferred - 4 - not to appear and contest the application. Giving due consideration to the submissions advanced by the learned counsel for the petitioner, I am of the considered opinion that the points raised by him happen to be his defence which cannot be looked into at this stage of taking cognizance. Admittedly taking cognizance does not necessarily mean the commencement of the proceeding against any one. Taking of cognizance is a judicial act and it ordinarily means that the Magistrate has come to the conclusion that there is a prima facie case for proceeding against the chargesheeted accused. At this stage only prima facie case has to be established and meticulous examination of probabilities and improbabilities is not required. It appears from the impugned order of the revisional court that he has upheld the order on the well established principle that at the stage of taking cognizance the court is not required to examine the pros and cons of the prosecution case, weigh the evidence and consider probable defence of the accused. There does not appear to be any illegality or impropriety in the order of the revisional court. For the reasons, stated above, I find no merit in this application which is accordingly dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 11th of May, 2009. Pradeep Srivastava/A.F.R.