IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.9955 of 2008 ARUN YADAV @ ARUN KUMAR YADAV, SON OF LATE PRATAP YADAV, PARMAMENT RESIDENT OF VILLAGE – MARANGE, P.S. – K. HAT, DISTT. – PURNIA, AT PRESENT WORKING AS CO-OPERATIVE EXTENTION OFFICER, PATNA DAIRY PROJECT, PATNA. ………………………… PETITONER. Versus THE STATE OF BIHAR …………………………. OPP. PARTY. ----------- 04/ 21.05.2010 Heard the learned counsel for the parties. This is a petition for quashing the entire criminal proceeding for the alleged offence under Sections 376, 511/306 of the Indian Penal Code. The prosecution case as alleged in the FIR by the informant Usha Devi is that on 23.11.2006 at 3:00 P.M his Pattidar Angad Yadav took his daughter Puja Kumari aged about 12 years in his house and threw on her bed and was going to rape her. In the mean time the informant reached and abused Angad Yadav and reported the matter to her Bhaisur and her son and the matter was reported for Panchayti . It is further alleged that her son along with Angad Yadav and Bhramdev Yadav asked Surendra and Bijendra to decide the matter but Surendra and Bijendra started abusing and were not ready for holding a Panchayat and thereafter his son came on 03.12.2006 and took poison and started vomiting and subsequently died in hospital. Learned counsel for the petitioner submits that in the FIR there are two parts of offence, the first is with regard to the attempt to rape and the second part contains the offence under 2 Section 306 of the Indian Penal Code and further contended that the police has not submitted charge-sheet but the cognizance has been taken also against this petitioner. It is further contended that he petitioner has no concern in the first part and in the second part itself there is allegation that it was Surendra and Bijendra who are said to have abused and not ready for Panchaiti compelling the accused person and merely because the petitioner was not ready for compromise though there is no such allegation against the petitioner that he was not ready for panchaiti, the responsibility on the petitioner for the crime under Section 306 of the Indian Penal Code may not be fastened. However, from the impugned order it is apparent that the learned Magistrate while taking cognizance considered the material in para 49 and 50 of the case diary holding prima facie case against the petitioner for taking cognizance and issuing process and the para 49 and 50 mentions that this petitioner took the son of the victim and when the said victim, the son of the informant returned, he was under the influence of the poison and the deceased disclosed that he was administered tea by the four accused persons including this petitioner and that he was administered tea by force by the four accused persons and after administering tea he was taken to the house where it was found that poison has been administered. However, having regard to this facts that the learned Magistrate taking into consideration the para 49 and 50 of the case 3 diary took cognizance and hence, there is prima facie material against the petitioner. Learned counsel for the petitioner, however, having relied upon decision AIR 1998 SC 128 (M/s. Pepsi Foods Ltd. & Anr. Vs. Sub-Judicial Magistate & Ors.), 2007 (2) PLJR 150 (Hiralal Gupta Vs. State of Bihar) and AIR 2010 SC 327 (Gangula Mohan Reddy Vs. State of Andhra Pradesh) for the proposition that no offence is made out and as contended that the order of Magistrate summoning the accused must reflect that he has applied his mind to the fact of the case and the law applicable thereto. Further the Magistrate should not reject the opinion of the I.O. in mechanical manner. Under the facts and circumstances the charge sheet has not been submitted by the I.O. in this case. Furtehr the 306 of the Indian Penal Code is not made out on the face value of the FIR even if they are accepted on the face value of the allegation made in the FIR. However, there is no dispute about the proposition of law but the same is not applicable under the fact and circumstance as there is material in the case diary that the four accused persons administered tea by force and the deceased disclosed that the four accused persons had administered tea and found that said Mintu Kumar was under the influence of poison and hence it indicates prima facie material against the petitioner. It is true that this fact has not been mentioned in the FIR but FIR may not contain each and every fact and if during investigation some materials have been found regarding the implication of the 4 accused persons, the cognizance may be taken and summon may be ordered to be issued. However, the learned Magistrate has not mentioned in detail but has referred para 49 and 50 of the case diary and observed that there is material against them and hence from the impugned order itself it is apparent that the Magistrate applied its mind that there are material against the petitioner in the case diary. However, at this stage of taking cognizance for issuing process only prima facie case is required to be looked into and I do not find any illegality and irregularity in the impugned order to interfere with at this stage and hence, this petition is hereby dismissed. Kundan (Gopal Prasad, J.)