Mahesh Kumar @ Mahesh Kumar Raut vs State of Bihar

Chandra Shekhar Jha, J

Heard learned counsel appearing for the petitioner and learned APP appearing for the State duly assisted by learned counsel appearing for the informant/O.P. No.2.

The present application has been filed by the petitioner for quashing the order dated 16.06.2023 as passed by Incharge Sub Divisional Judicial Magistrate, Rosera in Bibhutipur P.S. Case No.69 of 2023, G.R. No.276 of 2023, whereby the learned jurisdictional Magistrate has taken cognizance for the offences punishable under Sections 302, 120-B, 414, 467, 468 read with 34 of the Indian Penal Code (in short ‘IPC’) and Section 25(1-B) of the Arms Act against the petitioner.

The brief case of prosecution, as it appears from the written information lodged by Ranjit Prasad/informant that his brother Surendra Prasad Singh was Mukhiya of Sinhia Bujurg Gram Panchayat, (South) in the year 2021. His Bhabhi was candidate for the post of Mukhiya, where wife of Ram Balak Singh, Ex-M.L.A. was also one contesting candidate for the said post and she had won the election. His Bhabhi had lost election. Due to death of present Mukhiya of Sinhia Bujurg, (South), in the year 2022, midterm election was likely to be held in for which his brother Surendra Prasad Singh had declared that his wife will fight election again, and thus he started preparation for coming election. Upon so, Ram Balak Singh and Lal Babu Singh alongwith his associates had threatened to kill his brother in presence of his Bhabhi and family members. It is further stated that on 20.02.2023 at about 7.30 A.M. his brother Surendra Prasad Singh along with Satyanarain Singh, while on way to his brick kiln at Bharpura Tola at Chochahi, were followed by them along with one Shashi Bhushan Singh. When they reached near Bachani Kachhary of village Madiha, certain persons assembled there and surrounded car of his brother. Amongst them, he saw Ram Balak Singh, Lal Babu Singh, both sons of Ram Jiwan Singh, Kailash Singh, son of Jageshwar Singh, Abhimanyu Singh, son of Shankar Singh, Mahesh Kumar Raut, son of Dinesh Raut (petitioner), Ramashray Singh @ Tunna Singh, son of Ram Shankar Singh all resident of village-Sheonathpur, Gram Panchayat Sindhia Buzurg (South), P.S. Bibhutipur, District Samastipur and four to five unknown persons armed with different weapons. Amongst them, Ram Balak Singh used abusive language and ordered to kill his brother as only then, he will leave to contest election. Thereafter, Lal Babu Singh opened fire, which hit to the head of his brother, further firing was made by Kailash Singh, which hit to Satyanarain Singh on his face due to which, both of them fell down to the ground. Thereafter, they started firing indiscriminately and ran away. Later on, with the help of villagers, both above injured persons were taken to hospital, where his brother was declared dead. Satyanarain was referred to D.M.C.H. (Darbhanga Medical College and Hospital) for better treatment, where he also died on the way. It is further stated that accused persons stated that they killed his brother so that his wife could not fight the coming election of gram panchayat. He further stated that accused Ram Balak Singh is convict, whereas Lal Babu Singh is accused of several cases.

On the basis of aforesaid written information lodged by Ranjeet Prasad, the informant, Bibhutipur P.S. Case No.69 of 2023 dated 21.2.2023 was registered against the petitioner and other accused persons.

It is submitted by Mr. R.P. Sharma, learned counsel for the petitioner that during the investigation, only one witness, namely, Shashi Bhushan Singh, other than the informant has named the petitioner. So far as rest of the witnesses are concerned, all are hearsay witnesses qua

involvement of petitioner. After completion of investigation, the police submitted charge-sheet against other named accused persons. So far as the petitioner is concerned, he was not charge-sheeted taking into account complete lack of evidence about his participation in the alleged occurrence.

After submission of charge-sheet against the accused persons, other than this petitioner, the learned Incharge Sub Divisional Judicial Magistrate, Rosera, vide order dated 16.6.2023, took cognizance against the petitioner also on the basis of material available on record.

Mr. R. P. Sharma, learned counsel appearing on behalf of the petitioner submitted that the petitioner is a Panchayat Teacher in government Primary School, Bhiri, P.S.-Bibhutipur, district Samastipur. On the day of the alleged occurrence, the petitioner's son Ashish Raj, an examinee of matriculation, had to appear at the examination centre at Tajpur High School. On 20.2.2023, when petitioner started to proceed for Tajpur alongwith his son, then at 9.00 A.M., he heard that Surendra Singh was shot by some unknown miscreants on the way to his brick kiln and he was taken to hospital for treatment. In protest, public had assembled on the road at different places. Being perturbed, he started for Tajpur on motorcycle along with his son as to enable him to appear at the examination at 9:00 A.M. itself, which was going to start at 1.00 P.M. and after examination, he stayed at the house of his Phupheri sister Indu Kumari at village-Digharua.

Mr. Sharma further submitted that during the investigation, the petitioner apprised the investigating officer as well as superior police officers about his defence of alibi, which was examined by the police after searching out location of mobile tower of the petitioner and Investigating Officer has also examined several witnesses. On the basis of their statements, the Investigating Officer came to a conclusion that the petitioner was not present at the place of alleged occurrence, rather at the time of the alleged occurrence, he was at his village home about 5-6 km. away from the alleged place of occurrence and was preparing to leave for Tajpur to enable his son to appear in his matriculation examination. It is further submitted that the petitioner was having no concern with animosity in between Surendra Singh, the deceased and Ram Balak Singh, Ex.-M.L.A. The petitioner had never made association with accused Ram Balak Singh or co-accused Lal Babu Singh. It is further submitted that the petitioner has got clean antecedent.

Arguing further, Mr. Sharma submitted that the petitioner is quite innocent and there is ample evidence in support of “alibi” of the petitioner and there is no evidence about involvement of the petitioner in the alleged occurrence.

It is further submitted that the petitioner is not accused in any other case. At present, the petitioner is posted as teacher in Primary School, Bhiri, P.S.-Bibhutipur, district Samastipur. He had joined said school as “Niyojit School Teacher” on 24.02.2007. Though, the petitioner's name is Mahesh Kumar but, his name has wrongly been mentioned as Mahesh Kumar Raut. His village has also been wrongly mentioned as Sheonathpur, where his village name is Sinhia Ghat. It is further submitted that the impugned order passed by the learned Sub-divisional Magistrate is totally against the material available on the record and same is fit to be quashed.

While concluding argument, Mr. Sharma, learned counsel for petitioner has relied upon the legal report of this High Court as passed in the matters of S.M. Mahtab Ahmad vs. the State of Bihar and Another reported as 2016 (4) PLJR 508; Babloo Paswan & Others vs. State of Bihar and Others reported as 2019 (2) PLJR 584; and also in the matter of Manish Kumar Jha vs. State of Bihar and Other reported as 2023 (2) PLJR 833.

On the other hand, learned APP and Mr. Pramod Kumar Singh, learned counsel appearing on behalf of informant/O.P. No.2 submitted that the petitioner has also preferred a Cr. Misc. No.8873 of 2024 challenging the order dated 09.11.2023, where the petition of petitioner preferred under Section 227 of the CrPC before the learned trial court was rejected but, same was dismissed by this Court as withdrawn, vide order dated 24.03.2025. It is further submitted that informant is the eye-witness of this occurrence, where he noted the presence of petitioner along with other co-accused persons while surrounding his deceased brother during the occurrence. It is pointed out that the main plea of petitioner is ‘alibi’ as at the time of alleged occurrence, he was proceeded for Tajpur with his son, as his son was an appearing candidate of Bihar School Examination Board scheduled to be held from 14.02.2023 to 21.02.2023 in the 2nd shift at 01:45 P.M. till 05:00 P.M.

It is pointed out that the occurrence took place on 20.02.2023, as per FIR. The distance of place of occurrence to that of the school is hardly 30-40 kms and, therefore, it cannot be said that the presence of petitioner was impossible on the place of occurrence at relevant point of time. It is further submitted that I.O., during investigation found petitioner at his village home, which is about 5-6 km. away from place of occurrence on the ground of mobile tower location. With such proximity of petitioner qua place of occurrence, benefit of “alibi” could not be given to petitioner and, therefore, I.O. must file charge-sheet against petitioner also, who is a named accused.

Mr. Singh further submitted that beside aforesaid, different factual aspects like, no previous enmity, no proximity with co-accused, denying any conspiracy and disputed identification etc. as raised in support of innocence of petitioner cannot be looked into at this stage for the reason that as per settled principles, all these facts can be looked into during the trial only. It is further submitted that plea of “alibi” is the rule of evidence and at this stage, maximum what Courts can look into that whether the FIR disclosed prima facie involvement of petitioner with alleged occurrence or not. Admittedly, the petitioner is a named accused in present double murder case, where informant is the eye-witness of the occurrence. Merely on the ground that the specific allegation of firing not appears available against petitioner, the version of defence and “alibi” cannot be looked into at this stage.

In support of his submissions, learned APP has relied upon the legal report of Hon’ble Supreme Court as available through Sunil Bharti Mittal vs. Central Bureau of Investigation and Ors. [(2015) 4 SCC 609]; Rakhi Mishra vs. State of Bihar and Ors. [(2017) 16 SCC 772]; and Nupur Talwar vs. CBI [(2012) 2 SCC 188].

It would be apposite to reproduce paragraph-9 of the legal report of this Court as passed in the matter of S.M. Mahtab Ahmad Case (supra), which which has been cited by learned counsel for the petitioner is as under:-

“9. It goes without saying that if an investigating agency after thorough investigation submits final report exonerating accused persons, the said report may not be treated as waste paper. Once such report os submitted, the learned Magistrate at the time of differing with the police report is required to assign succinct reason. Since in order impugned, no reason has been assigned, the Court of satisfied that order impugned is liable to be set aside, particularly, in view of nature of accusation, as has been levelled in the complaint petition.”

It would further be apposite to reproduce paragraph-9 of the legal report of this Court as passed in the matter of Babloo Paswan case (supra), which has been cited by learned counsel for the petitioner is as under:-

“9. Accordingly, the order impugned is hereby set aside and matter is remitted back to the learned Magistrate to examine the record and pass order in accordance with law. If the learned Magistrate intends to proceed against the petitioners, he is required to succinctly indicate reason for differing with the police report.”

It would also apposite to reproduce relevant paragraph-10 of the legal report of this Court as passed in the matter of Manish Kumar Jha case (supra), which has been cited by learned counsel for the petitioner is as under:-

“10. It is an admitted fact that impugned order of cognizance dated 04.07.2017 is a non-speaking order and any order by a Judicial Authority which is a non-speaking order is no order in the eye of law and it cannot be sustained.”

It would further be apposite to reproduce the impugned order of cognizance dated 16.06.2023 as passed by learned S.D.J.M. Rosera in Bibhutipur P.S. Case No.69 of 2023, G.R. No.276 of 2023 for better understanding of the case, which is as under:-

It would be apposite to reproduce paragraph Nos.-16, 17, 18 and 22 of the legal report of Hon’ble Supreme Court as available through Nupur Talwar case (supra), which is as under:-

“16. Section 190 of the Code lays down the conditions which are requisite for the initiation of a criminal proceeding. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the police in its report and may prima facie find out whether an offence has been made out or not.

The taking of cognizance means the point in time when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been

committed. At the stage of taking of cognizance of offence, the court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record.

The principles relating to taking of cognizance in a criminal matter has been very lucidly explained by this Court in Chief Enforcement Officer v. Videocon International Ltd. [(2008) 2 SCC 492], the relevant observations wherefrom are set out:

“19. The expression ‘cognizance’ has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means ‘become aware of’ and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.

‘Taking  cognizance’  does  not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind  to  the  suspected  commission  of  an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.”

Reference in this connection may be made to a three-Judge Bench decision of this Court in India Carat (P) Ltd. v. State of Karnataka [(1989) 2 SCC 132]. Explaining the relevant principles in para 16, Natarajan, J. speaking for the unanimous three-Judge Bench, explained the position so succinctly that we would rather quote the observation as under:-

“16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1) (b) of the Code even if the police report is to the effect  that  no  case  is  made  out  against  the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance  of  the  offence  complained  of  and order the issue of process to the accused. Section  190(1)(b)  does  not  lay  down  that  a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that  the  investigation  has  made  out  a  case against the accused. The Magistrate can ignore the  conclusion  arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused.” These well-settled principles still hold good. Considering these propositions of law, we are of the view that we should not interfere with the concurrent order of the Magistrate which is affirmed by the High Court.”

It  would  further  be  apposite  to  reproduce paragraph-33 of the legal report of Hon’ble supreme Court as available through Sunil Bharti Mittal case (supra), which is as under:-

“33. In the first instance, we make it clear that there is no denying the legal position that even when a person is not named in the charge-sheet as an accused person, the trial court has adequate powers to summon such a non-named person as well, if the trial court finds that the charge-sheet and the documents/material placed along with the charge-sheet disclose sufficient prima facie material to proceed against such person as well. Kishun Singh and Dharam Pal are the direct decisions on this aspect. However, in the present case, the question is not as to whether there is sufficient incriminating material against the appellants filed in the trial court to proceed against them. Whether such a material is there or not is not reflected from the impugned order as that aspect is not even gone into. The learned Special Judge has not stated in the order that after examining the relevant document, including statement of witnesses, he is satisfied that there is sufficient material on record to proceed against the appellants as well.”

It would further be apposite to reproduce paragraph-4, 5 and 6 of the legal report of Hon’ble Supreme as available through Rakhi Mishra case (supra), which is as under:-

“4. We have heard learned counsel appearing for the parties. We are of the considered opinion  that  the  High  Court  erred  in  allowing  the application filed by Respondents 2, 4, 5, 6, 7, 8, 9 and

10  and  quashing  the  criminal  proceedings  against them. A perusal of FIR would clearly show that the appellant alleged cruelty against Respondents 2, 4, 5, Deepak Gupta [(2015) 3 SCC 424] held as follows:-

“8.  … At the  stage of  cognizance  and summon the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence … to find out whether a  prima  facie  case  has  been  made  out  for summoning the accused person. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits  of  the  materials  or  evidence  of  the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not.”

The order passed by the trial court taking cognizance against R-2 and R-4 to R-9 is in conformity with the law laid down in the above judgment. It is settled law that the power under Section 482 CrPC is exercise by the High Court only in exceptional circumstances only when a prima facie case is not made out against the accused. The test applied by this Court for interference at the initial stage of a prosecution is whether the uncontroverted allegations prima facie establish a case.

A perusal of the complaint would disclose a prima facie case against Respondent 2, 4 to 10. The order passed by the Chief Judicial Magistrate by

which cognizance was taken ought not to have been interfered with by the High Court.”

In view of aforesaid factual and legal submissions and by taking note of fact as informant is the eye-witness of the present occurrence of double murder, where the petitioner was found present along with other named co-accused persons at place of occurrence prima facie as an accomplice, where the main plea of “alibi“ and also certain facts like, previous enmity, absence of conspiracy and disputed identification etc., certainly cannot be looked into at this stage, because the Court only to look into a “prima facie” case in view of legal ratio as settled above.

No doubt, the learned Jurisdictional Magistrate is empowered under law to take a different view from the police report as per Section 173(2) of CrPC, if a prima facie

case is made out against the accused person on the basis of material available on record to take cognizance of an offence under Section 190(1)(b) of the CrPC. For said different note, the reason appears well-assigned through impugned cognizance order, as discussed above. The impugned order is a detailed and reasoned order, and, therefore, the same need not requires any interference while dealing with the present petition, in view of observation of this Court as recorded in para-23 (supra) and by also taking a guiding note from Nupur Talwar Case (supra).

Accordingly, the present petition stands dismissed, being devoid of any merit.

Let a copy of this order be communicated to the court concerned immediately.