IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.9727 of 2008 RAJENDRA TIWRAY, SON OF LATE SARYUG TIWARY, RESIDENT OF VILLAGE – RAJWARA, P.S. – GHORASAHAN, DISTRICT – EAST CHAMPARAN ………………… PETITIOENR. Versus THE STATE OF BIHAR ………………… OPP. PARTY. ----------- 02/ 03.05.2010 Heard both the parties. This petition is directed against the order taking cognizance for offence under Sections 307, 447, 341, 379, 147, 149, 323 and 427 of the Indian Penal Code. There is allegation that twelve persons including this petitioner came to the Darwaja of the informant and one of them Anil Tiwari assaulted him by Khukhari and caused the injury on his left arms by which his little finger was cut and when on Halla Om Prakash Tiwari came then he was assaulted by Fersa by one Chandra Shekhar Tiwari on his head causing injury and the other accused persons also assaulted. The injury on the person of Om Prakash shows to be grievous 5 CM x 2 MM x bone touch deep sharp cut injury on left side of scalp. Learned counsel for the petitioner submits that the petitioner has not been assigned any role of Farsa blow and the role assigned to this petitioner is to assault by - 2 - Lathi to the nephew of the informant and hence contended that offence under Section 307 IPC is not made out. However, having regard to the facts, since there is allegation that all the accused persons came and assaulted and one of the injury shown to be on vital part of body left scalp which is opined to be grievous in nature and hence at this stage of taking cognizance the Magistrate has only to see whether prima facie offence is made out. Hence, having regard to the fact that injury on vital part of body as scalp and nature of injury is given and hence no merit in submission that prima facie case under Section 307 is not made out. Learned counsel for the petitioner, however, contended that the learned Magistrate has not reiterated the facts specifically what is against each of the accused persons including the petitioner and hence the order taking cognizance is bad. However, it is well settled and held by the Supreme Court that at this stage the Magistrate is not required to reiterate the facts and the lower court cannot be burdened with this duty when they are already vexed - 3 - with the load of work and the requirement of the law at the stage of taking cognizance and issuing process is whether a prima facie case is made out However, from perusal of the impugned order it appears that the Magistrate ordered that he has stated that he has perused the case diary. Learned counsel for the petitioner, however, submits and relied upon a decision reported in 2007(2) PLJR 226. However, in this case it has been stated that there must be some material on the basis of which the cognizance was taken and summon was issued. However, in the facts and circumstance of the case it was held that there was no basis. However, in the facts and circumstances there is specific allegation against the petitioner and injury has been found which is on the vital part of the body and even at this stage the court has only to see whether a prima facie case is made out. However, there is allegation of assault on head and the injury was found which is on vital part of the body like head, scalp and the said injury is grievous and hence there are basis for taking cognizance against the petitioner, hence, at this stage, I am not inclined to interfere with the impugned - 4 - order. However, if the petitioner so advised, at the stage of charge the petitioner may raise the issue and the learned court below shall deal with in accordance with law. Accordingly, this petition is dispose of. Kundan (Gopal Prasad, J.)