Pashupati Tiwari @ Pashpati Tiwari And ORS v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.45083 of 2012 ====================================================== Pashupati Tiwari @ Pashpati Tiwari & Ors .... .... Petitioner/s
Versus
The State of Bihar .... .... Opposite Party/s ====================================================== Appearance :
For the Petitioner/s : Mr. Lokesh Kumar Singh For the Opposite Party/s : Mr. S.M.Rahman (App) ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 16-04-2015 Heard the learned senior counsel, Mr. Bakshi S.R.P. Sinha on behalf of the petitioners and the learned A.P.P. on behalf of the State of Bihar.
This application under 482 Cr.P.C. has been filed by the petitioners for quashing the order dated 10.10.2008 in G.R. No.948 of 2006 / Tr. No.2873 of 2009 arising out of Bishambharpur P.S. Case No.20 of 2006 whereby the Court below took cognizance under Section 147, 308 of the I.P.C. The learned senior counsel after some argument submitted that the Court could not have taken cognizance under Section 308 IPC on the basis of supervision note and except the supervision note, there is no material available in the case diary to show that offence under Section 308 was made out.
The learned counsel has annexed the injury report with this criminal Misc. application.
Patna High Court Cr.Misc. No.45083 of 2012 (2) dt.16-04-2015 2 / 3 On the other hand, the learned A.P.P. submitted that there is no illegality in the impugned order and the Court below on the basis of the chargesheet has taken cognizance. Therefore, inherent jurisdiction cannot be invoked by the petitioner. The chargesheet has been annexed as Annexure '2'. From perusal of the chargesheet, it appears that the I.O. found the case to be true under Section 147, 447, 323 I.P.C. and there are several materials for the same but according to the direction of the supervising authority, the supervising authority found the case under Section 308 IPC also and directed the I.O. to file the chargesheet under the said Section. Therefore, the chargesheet was submitted under Section 308 IPC also. From perusal of the order taking cognizance, it appears that the Court below has not taken into consideration this aspect of the matter that the supervising authority directed the I.O. to file chargehseet under Section 308 although the I.O. did not find the case to be true under Section 308 IPC.
It is settled principle of law that the supervisory note is not an evidence in the case and on the basis of the supervision note, cognizance cannot be taken, if there is no evidence. Now, therefore, in view of the chargesheet, there is no material in the case diary in support of the offence said to have been committed
Patna High Court Cr.Misc. No.45083 of 2012 (2) dt.16-04-2015 3 / 3 under Section 308 IPC. However, on the basis of the chargehsheet and the materials available on record and allegation levelled in the FIR and chargesheet, it cannot be said that no offence at all has been disclosed.
In view of the above settled principle of law that part of the order dated 10.10.2008 whereby cognizance has been taken under Section 308 IPC is quashed. However, the other part of the order whereby cognizance has been taken under Section 147, 447, 323, concerned, the same is confirmed.
In the result, this Cr. Misc. application is allowed in part. The order taking cognizance is modified to the extent indicated above.
(Mungeshwar Sahoo, J) Sanjeev/- U T