Ashok Kumar Singh son of Sri Hareram Singh vs State Of Bihar

Heard Sri Kanhaiya Prasad Singh, learned

Senior counsel for the petitioner, Sri Bijay Kumar Sinha,

learned counsel for the Railway and Sri Sanjay Kumar

Sharma, learned Additional Public Prosecutor for the

State.

The petitioner in the present case is seeking

quashing of the order dated 18.07.2012 passed in RPF

(SPJ) P.S. Case No. 205 of 2010/CR. No. 537/2010 by

learned Judicial Magistrate (Railway), 1st Class,

Samastipur, whereby learned Magistrate had taken

cognizance under Sections 153, 146, 147 and 174 of the

Railways Act, 1989 against the petitioner.

Learned Senior counsel for the petitioner

has placed before me the prosecution report submitted

before the learned Chief Judicial Magistrate (Railway),

Samastipur. A perusal of the First Information

Report/prosecution report itself shows that the name of

this petitioner along with two other persons were shown

on the basis of statement said to have been made by

the villagers of the neighbouring village. The case was

lodged stating that on 19.07.2010 at about 8.55 while

the informant was on duty, about 10 persons assembled

and started complaining that due to an ongoing

construction of bridge the market of the village will be

submerged in flood. The informant told them that this is

a high level things so they should complaint to the local

M.P., M.L.A., District Magistrate and higher officers.

Later on when Train No. 256JDNU was going, the driver

of the train spotted that a concrete slipper was lying on

the Railway track. The driver got that displaced with the

help of passengers and public. In this regard the guard

gave an information and the train left. Thereafter the

informant came to know from the neighbouring villagers

the name of three persons including the petitioner.

Allegation is that of creating hurdle in the work of

Railway employees. In course of investigation police

submitted final form saying that there is no sufficient

material to proceed against the present petitioner. The

final form together with statement of some official

witnesses namely, Sri Devashish Kumar Sinha, Sri Vijay

Paswan, Sri Janak Mahto, Sri Shashi Kant Prasad, Sri

Rakesh Kumar and Sri Jairaj Giri were filed before the

learned Magistrate, the learned Magistrate, however,

decided to take cognizance under Section 153, 146, 147

and 174 of the Railways Act, 1989, against all the

accused persons including the present petitioner.

A perusal of the order taking cognizance

would show that it has been passed in a routine and

mechanical manner inasmuch as the order taking

cognizance dated 18.07.2012 says that cognizance has

been taken against all the three accused persons. In the

last line of the order taking cognizance a direction has

been issued to issue summon against the present

petitioner. It is well settled that cognizance is taken of

the offence and not of the offender. After taking

cognizance the learned Magistrate has to examine the

materials sufficient to issue summon against an

accused. The final form contained statement of only

official witnesses who have no personal knowledge of

the facts alleged in the First Information Report and on

that basis police did not find sufficient material to

charge-sheet the petitioner. The materials placed before

the learned Magistrate, nowhere shows any material to

proceed against the present petitioner, however, the

learned Magistrate directed issuance of summon without

proper appreciation of materials available on record. In

the case of Prashant Bharti Vs. State of NCT of

Delhi since reported in AIR (2013) SC 2753; the

Hon''ble Apex Court has laid down the test of four steps

which are required to be followed for the purpose of

relying upon the document placed by the petitioner

before the Court.

Following the said guideline of the Hon''ble

Supreme Court, I have examined the records and have

found that those are genuine part of police final form

and undisputedly go to prove that no prima facie case is

made out against the petitioner. Those are the

documents which are part of the materials on the basis

of which the learned Magistrate has issued summon,

however, those materials have not been properly

examined by the learned Magistrate. In opinion of this

Court no prima facie case is made out for summoning

the present petitioner in the present case. The order

taking cognizance having been passed in a routine and

mechanical manner, the same is hereby set aside.

This application is allowed.