IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50636 of 2007 SUBODH KUMAR, son of Sri Rameshwar Sah, Resident of village Kudhani, P.S. Kudhani, District Muzaffarpur Versus 1. THE STATE OF BIHAR 2. Uday Kumar, son of Sri Bilash Singh, Resident of village Marautpur, P.S. Desri, District Vaishali ----------- 3. 29.3.2010 Heard Mr. Ashwini Kumar Singh, learned Senior counsel for the petitioner and the counsel for the State. The petitioner assailing the impugned order taking cognizance for offence under sections 406/420/384/120B of the Indian Penal Code and section 27 of the Arms Act has submitted that even if the complaint petition is read as a whole there would be nothing specific against the petitioner so as to make him also liable to face trial. Mr. Singh, with his usual vehemence, has taken this Court to different aspects of the case but at the end of the day he had to accept that the scope of judicial review with regard to an order taking cognizance in view of the judgment of Apex Court in the case of R.P.Kapur vs. State of Punjab, reported in AIR 1960 S.C. 866, is absolutely confined being reduced to the following 2 three principles: (i) When it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category. (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises, it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. (iii) Where the allegations made against the accused persons do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent 3 with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate and ordinarily it would not be open to any party to invoke the High Court’s inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.” Judged on the aforementioned parameters when the allegation of the complaint petition is looked into it is clear that the complainant alleges five persons in all including the petitioner as well to have formed a gang and duped him in course of being relieved of his amount to the tune of Rs. 2,20,000/-. Whether such an allegation as a whole or part thereof is correct or incorrect can be gone into only in course of trial and therefore it cannot be said that no offence is made out against the petitioner, named as one of the five 4 accused persons who too had taken part in the alleged occurrence. Thus, the consequential impugned order taking cognizance and issuance of summons for facing trial of the petitioner cannot be held to be vitiated in law. That being so, this Court would not find any error in the impugned order and accordingly, this application is dismissed. It however goes without saying that the petitioner will be at liberty to raise all these issues at the time of framing of the charge. (Mihir Kumar Jha,J.) Surendra/