Pintu Das @ Pintu Kumar v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.28202 of 2017 Arising Out of PS.Case No. -150 Year- 2016 Thana -CHANDAN District- BANKA ======================================================

1. Pintu Das @ Pintu Kumar, son of Pradeep Das, resident of villageKhirhartari, Police Station- Chandan, District- Banka. .... .... Petitioner/s

Versus

1. The State of Bihar .... .... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Ajay Mukherjee, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SANJAY PRIYA ORAL ORDER 4/ 21-07-2017 Instant application has been filed under Section 438 Cr.P.C. on the ground that cognizance against the petitioner has been taken only under Section 302/34 Indian Penal Code. From the First Information Report, it appears that the case has been registered against the petitioner and other accused persons for the offence under Section(s) 302/34 Indian Penal Code and Section 3(2) (v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. The police after investigation submitted charge-sheet against accused Yugal Das alias Bhutka and did not sent up this petitioner, but the learned Special Judge after perusing the case diary took cognizance against this petitioner and other accused persons under Section 302/34 Indian Penal Code by order dated 20.04.2017. Learned Special Judge also took cognizance against accused, Rinku Roy,

Patna High Court Cr.Misc. No.28202 of 2017 (4) dt.21-07-2017 2/3 under Section 3(2) (f) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. Order of cognizance has been annexed as Annexure-2 series.

Learned counsel for the Petitioner has submitted that he has filed bail petition under Section 438 Cr.P.C. because there is no cognizance against the petitioner under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. This Court is of the view that in terms of Section 190 Cr. P.C., cognizance is taken of offence in a case and not the offenders.

From the order of cognizance dated 20.04.2017, it appears that cognizance has been taken by the learned Special Judge in the case against petitioner and other two accused persons for the offence under Section(s) 302/34 Indian Penal Code and against accused, Rinku Roy, under Section 3(2)(f) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act.

Therefore, in the light of the decision of Division Bench of this Court in the case of Bisheshwar Mishra and Ors. Vs. The State of Bihar reported in 2016 (4)PLJR 1058, this Court is of the view that application under Section 438 Cr. P.C. would not be maintainable, rather, Criminal Appeal will be

Patna High Court Cr.Misc. No.28202 of 2017 (4) dt.21-07-2017 3/3 maintainable.

In view of such, liberty is given to the petitioner to convert this application into a Criminal Appeal within a period of three weeks.

(Sanjay Priya, J) JA/- U T