IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.49737 of 2008 BHUPENDRA MANDAL, SON OF BINDESHWARI MANDAL, RESIDENT OF VILLAGE GHIBAHA POLICE STATION CHATTAPUR, SUPAUL. Versus 1. STATE OF BIHAR 2. SRIKANT PATHAK, SON OF LATE BAIDYANATH PATHAK, RESIDENT OF VILLAGE GHIBAHA POLICE STATION-CHATTAPUR, P.O. GHIBAHA, SUPAUL. ----------- 03. 03.08.2010 Heard counsel for the petitioner. Nobody appears on behalf of the State and O.P.No.2. Petitioner is aggrieved by order dated 16.08.2004, passed by learned Judicial Magistrate 1st Class, Supaul in Complaint Case No.490C/2003(Sri Kant Pathak vs. Vedanand Yadav & Ors.). On 28.05.2000, the victim (brother of the informant) was sleeping outside the house. At the dead of night, few accused persons arrived there and assaulted him by means of fire-arms. On hearing the sound of gunshot, the informant came out on the Darvaza only to find his brother lying in an injured condition. The injured is said to have disclosed him the name of some of the accused persons who had assaulted him. It further appears that other witnesses had also arrived at the scene and they also disclosed the name of some of the accused persons. Accordingly an FIR was lodged against a set of accused persons but not against the petitioner. The police on conclusion of investigation submitted final form on 04.08.2002. It appears that the case was found to be true but without any clue. Accordingly nobody was sent up for standing - 2 - trial. Before receipt of the aforesaid final form, a protest-cum- complaint petition was filed by O.P.No.2 in the court of CJM on 01.7.2000. On submission of final form, the said protest-cum- complaint petition was treated as a complaint and an enquiry was initiated. In course of enquiry, three witnesses were examined besides the complainant. The complainant in course of his statement on S.A. has named the petitioner besides another accused person whose name found disclosed in the FIR. The statement of the witnesses are not on record. They seem to have supported the informant. On a consideration of materials surfacing on record in course of such enquiry, learned Magistrate has found that a prima facie case is made out from the evidence brought on record justifying order taking cognizance against the petitioner. Learned Magistrate has not decided to proceed against other accused persons whose name figured in the FIR as also in the protest-cum- complaint petition as it was found that there was no sufficient evidence. The complainant assailed the aforesaid order letting of other accused persons whose name figured in the FIR by filing Cr.Revision No.152/2004. The said revision was dismissed by order dated 9.01.2007 (Annexure-5). Learned counsel for the petitioner assails the impugned order on the ground that same is maliciously actuated with mala fide and that there is complete paucity of evidence against the petitioner. It is contended that neither in the FIR nor in the protest-cum-complaint petition the informant/complainant has - 3 - named this petitioner. It is next contended that one of the sons of the deceased has obtained certain largess/privilege from the government on the plea that his father (deceased) died in a road accident. Having considered the submissions advanced on behalf of petitioner and after going through materials on record, this Court is of the view that the possible defence of the petitioner may be considered at the appropriate stage of the case. The name of the petitioner has surfaced in course of enquiry conducted under section 202 Cr.P.C. The Magistrate on being satisfied therewith has passed the impugned order taking cognizance. This Court does not find any justification for interfering with the impugned order. The application is accordingly dismissed. hr ( Kishore K. Mandal )