Patna High Court
ASHOK YADAV @ ASHOK KUMARversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
- Bench
- SONI SHRIVASTAVA
Holding
The court held that the magistrate’s order taking cognizance was lawful and therefore dismissed the application for quashing.
Summary
The petitioners filed an application seeking to quash the order dated 05‑06‑2023 of the Additional Chief Judicial Magistrate, Patna City, which had taken cognizance and issued process against them under several IPC provisions and the Arms Act. The facts allege that a mob of about twenty‑one persons attacked the informant's uncle, and the petitioners claim that except for petitioner No. 3, their names do not appear in the FIR and that they have been falsely implicated for ulterior motives. The petitioners also raised the defence of malicious prosecution, citing a separate complaint filed by the mother of some accused. The State opposed, contending that a charge‑sheet had been filed against the petitioners and the magistrate’s order was proper. The High Court examined the material, noted that petitioner No. 3 was named in the FIR as the main conspirator and that the charge‑sheet supported the magistrate’s cognizance, and concluded that there was no illegality in the order. Consequently, the application for quashing was dismissed, with a reminder that the petitioners may raise their arguments at the trial stage.
Issues considered
- Whether the order of the Additional Chief Judicial Magistrate taking cognizance of the offence is illegal or liable to be quashed.
- Whether the petitioners, whose names (except petitioner No. 3) are not in the FIR, can be said to be falsely implicated and entitled to relief.
- Whether the allegation of malicious prosecution warrants interference with the magistrate’s order.
Legislation cited
- Arms Act — s. 27
- Indian Penal Code — s. 120B, 147, 148, 149, 307, 323, 341, 504, 506
Subjects
- quash order
- cognizance
- criminal procedure
- malicious prosecution
- charge sheet
- FIR
- conspiracy
- Arms Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.79424 of 2023
Arising Out of PS. Case No.-254 Year-2022 Thana- MALSALAMI District- Patna
======================================================
1. Ashok Yadav @ Ashok Kumar Son Of Vindeshwar Rai R/O Village-
Rikabganj, P.S.- Malsalami, Dist.- Patna
2. Vishal Rai @ Vishal Kumar @ Vikas Kumar Son Of Munakka Rai @ Ajay
Kumar Singh R/O Village- Rikabganj, P.S.- Malsalami, Dist.- Patna
3. Devendar Rai @ Devendar Singh @ Devendra Singh Son Of Ishwardhari
Rai R/O Village- Rikabganj, P.S.- Malsalami, Dist.- Patna
4. Kanchan Kumar Son Of Devendar Rai @ Devendar Singh @ Devendra
Singh R/O Village- Rikabganj, P.S.- Malsalami, Dist.- Patna
5. Sumit Kumar Son Of Munakka Rai @ Ajay Kumar Singh R/O Village-
Rikabganj, P.S.- Malsalami, Dist.- Patna
... ... Petitioner/s
Versus
1. The State of Bihar
2. Ajit kumar son of wakil rai r/o village- rikabganj, p.s.- Malsalami, dist.-
Patna
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Jitendra Narain Sinha, Advocate
For the Opposite Party/s : Mr. Anil Kumar Singh No. 1, A.P.P
======================================================
CORAM: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL ORDER
2 03-02-2026 Heard the learned counsel for the petitioner and the
learned A.P.P. for the State.
2. The present application has been filed for quashing of
the order dated 05.06.2023 passed by the court of Additional Chief
Judicial Magistrate, Patna City, Patna in connection with Malsalami
P.S. Case No. 254 of 2022 whereby the learned Jurisdictional
Magistrate was pleased to taking cognizance and issue process
against the petitioners and others under Sections 147, 148, 149, 341,
323, 307, 504, 506, 120B of the IPC and section 27 of the Arms Act.
Patna High Court CR. MISC. No.79424 of 2023(2) dt.03-02-2026
2/3
3. The short facts of the case is that about twenty one
named accused persons along with others came variously armed and
attacked the uncle of the informant and also other persons who
intervened causing injuries to them.
4. Learned counsel for the petitioners has submitted that
so far as these petitioners are concerned their names do not figure in
the First Information Report except petitioner no. 3. It is further
submitted that while the charge of conspiracy has been attributed to
petitioner no. 3, as would be evident from the First Information
Report itself, the other petitioners have subsequently also been stated
to be members of the mob and these petitioners, who happen to be
the gotias and also next door neighbours, have falsely been
implicated in the present case due to oblique motives. It has also been
submitted that since the mother of the accused nos. 3, 4 and 15 of the
F.I.R. had also filed a complaint case bearing Complaint Case No.
535 of 2022 in the Court of A.C.J.M Patna city against the present
informant and it is on such grounds that the ground of malicious
prosecution has also been urged. Petitioner nos. 2, 4 and 5 are also
stated to be young students who have nothing to do either in the act
or in the conspiracy angle.
5. Learned A.P.P. for the state opposes the present
application on the ground that after investigation charge sheet has
been submitted against these petitioners also whereafter the
impugned order taking cognizance has been passed.
Patna High Court CR. MISC. No.79424 of 2023(2) dt.03-02-2026
3/3
6. Taking the rival contention into consideration, this
Court is of the opinion that so far as petitioner no. 3 is concerned his
name has already featured in the first information report as the main
conspirator and with regard to other petitioners also on account of
some materials collected during the course of investigation, charge
sheet was submitted and the order dated 05.06.2023 was passed
taking cognizance and issuing summons against them. Upon perusal
of the order taking cognizance, it appears that there is no illegality in
the same and as such the court finds no sufficient ground which
would warrant any interference with the said order. As such, the
present application is dismissed. However, it goes without saying that
the petitioners would always have the liberty to raise all the
arguments at the appropriate stage of charge which shall be
considered in accordance with law.
7. Accordingly, the present application is dismissed.
(Soni Shrivastava, J)
vashudha/-
U T
Checking your session…