IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15880 of 2007 1. RANJEET KUMAR, S/o Suresh Prasad 2. Pintu Pandey @ Amar Nath Pandey, S/o Kedar Pandey 3. Rajeev @ Dilkhul Pandy, S/o Anil Pandey All residents of village Noawan, P.S. Asthawan, District – Nalanda. … Petitioners Versus 1. STATE OF BIHAR 2. Baso Mahto, S/o Late Narayan Mahto, R/o village Bishunpur, P.S. Giriyak, District – Nalanda … Opp. Parties. For the petitioners : Mr. Raj Kishore Prasad, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. ------ The petitioners herein, three in number, have prayed for the quashing of order dated 26.9.2006 passed by the learned Chief Judicial Magistrate, Nalanda at Biharsharif, in Giriak (Katrisarai) P.S. Case No. 72 of 2005, G.R. 1063 of 2005, whereby he has taken cognizance under sections 302, 364A/34 I.P.C. and section 27 of the Arms Act. One Baso Mahto gave his fardbeyan at about 11 P.M. on 30.5.2005 inter alia alleging that earlier that night at about 9.30 P.M. he along with his masters Vinod Kumar, Vinay Kumar and Vikash Kumar were going to their house and when they reached near the house of Vijay Kumar Mathur in Katrisarai, all of a sudden 10 – 12 persons variously armed with rifles, pistols etc. arrived and cordening the three persons at the point of arms took them away towards north and after some time sound of firing of 5 – 6 shots could be heard coming from the side of the Ahiachak Garden. Hearing the gun fire the informant raised hulla but none appeared to be attracted thereby. - 2 - It is said that after the criminals had fled, the informant gathered courage to go towards the garden of Dinesh Chand and there he found master Vikash Kumar lying dead smeared with blood and there were several gun shot injuries on his body and the other two master Vinod Kumar and Vijay Kumar had been taken away by the criminals. Attracted by the sound of gun fire the police party arrived and they gave chase to the criminals but the criminals resorted to firing at the police party which was responded to by the police and in the mellee and taking advantage of the dark night the criminals managed to escape with Vinod and Vinay. On the basis of the said fardbeyan Giriak P.S. Case No. 72 of 2005 was registered against 10 – 12 unknown persons under sections 364A and 302/34 I.P.C. and section 27 Arms Act. It has been submitted by the learned counsel for the petitioners that they are not named in the F.I.R. and even the witnesses who were examined in course of the investigation did not name them. However, from paragraph 39 of the case diary the further statement of the informant it appears that he suspected the hands of Bipin Bihari Mahto, Ashok Mahto, Pintu Mahto, Sanjay Kumar, Rajeev Mahto and Para Pankaj but he had not suspected the hands of the present petitioners. Witness Vikash Paswan in para 40 has supported the statement in paragraph 39. Even Harendra Sao in paragraph 82 while naming other persons has not named the petitioners. Victim of the kidnapping, Vinay Kumar in para 176 of the case diary has named one Rajeevv Mahto. Even the confessional - 3 - statement of Rakesh Kumar @ Bhajju Mahto in paragraph 246 has named a large number of persons including Rajeev Mahto but has not named the petitioners. It has further been submitted that after investigation final form was submitted against the petitioners against whom from the case dairy no material was available . On this premise it has been submitted by the learned counsel for the petitioners that notwithstanding the fact that no evidence was available against the petitioners in the voluminous case diary yet cognizance was taken against them and they have been dragged into the case without there being any evidence against them. It has also been submitted that under similar circumstances one Rajeev Prasad who had filed quashing application vide Cr. Misc. No. 4664 of 2007 wherein Hon’ble Mr. Justice Ghanshyam Prasad was pleased to issue notice to O.P. No. 2 and proceeding was stayed. It is well settled that the Court can take cognizance differing from the final report if the Court finds prima facie case against the accused persons. The matter is no more res integra in view of the judgments of the Apex Court in Raghubansh Dubey Vs. The State of Bihar (AIR 1967 SC 1167), Nagawwa Vs. Veeranna (AIR 1976 SC 1947), Hareram Satpathy Vs.Tikaram Agrawal (AIR 1978 SC 1568), and India Carat (P) Ltd. V. State of Karnataka, reported in (1989) 2 SCC 132 . So far as the other submissions raised by the learned counsel for the petitioners that in the whole of the case diary running into over hundred pages no material was found against the petitioners - 4 - is concerned I am of the opinion that this is not the proper stage in exercise of powers under section 482 Cr.P.C. to look into the case diary as cognizance has been taken on the availability of even great suspicion. Curiously it is not mentioned as to how, when and under what circumstances the petitioners were arrested in connection with present case or whether they surrendered. If the petitioners had not been named by any body or identified by any body their complicity in this case never arises. The fact that the parentage of the petitioners are different is another issue which cannot be agitated here. The same can be raised at the time of framing of charge. From perusal of the statement of the kidnapped victims the names of the petitioners are mentioned in their statements and as such it appears that the name of the petitioners transpired during investigation. In view of what has been stated above I find no merit in this application which is dismissed. However, the petitioners if so desire may raise all these points at the time of point of framing of charge and in that event the Court will look into the statements and will pass orders in accordance with law. The Patna High Court Dated the 20th November, 2008 Sanjay Pd./ A.F.R (Abhijit Sinha, J.)