Patna High Court – Orders
Gauri Shankar Kumar @ Gauri Shankar … vs The State Of Bihar on 21 July, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.55932 of 2022
Arising Out of PS. Case No.-145 Year-2019 Thana- PHULWARIA District- Begusarai
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GAURI SHANKAR KUMAR @ GAURI SHANKAR SINGH S/O RAM
BINAY SINGH @ BINAY SINGH Resident of village- Madurapur, P.S.-
Teghar, District- Begusarai.
... ... Petitioner/s
Versus
1. The State of Bihar Bihar
2. BHALLU SINGH S/O LATE LAXMI SINGH Resident of village-
Kadirchak Baro, P.S.- Phulwariya, District- Begusarai.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. P.N. Shahi, Sr. Advocate
: Mr. Amit Anand, Advocate
: Mr. A. Govind, Advocate
: Mr.Shivam, Advocate
For the State : Mr.Anil Kumar, APP
For the O.P. No. 2 : Mr. Shashank Shekhar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ANSUL
ORAL ORDER
6 21-07-2026
Heard learned counsel for the petitioner, learned
counsel for the Opposite Party No. 2 and learned APP for the
State.
2. This is an application for quashing the order dated
30.03.2022 passed by the learned A.C.J.M.-I, Begusarai in
Phulwariya P.S. Case No. 145 of 2019 whereby and whereunder
the learned A.C.J.M.-I, Begusarai has been pleased to take
cognizance against the petitioner, Pappu Singh and Pankaj
Singh alias Rijhan Singh under Sections 302, 120B and 34 of
the Indian Penal Code and Section 27 of the Arms Act.
3. The prosecution case is that Phulwariya P.S. Case
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No. 145 of 2019 was registered on the report of one Bhallu
Singh. The allegation is that at 06:00 PM on 22.10.2019 the
informant Bhallu Singh sent his son Lallu Singh to fetch sugar.
When the son did not return after 15 to 20 minutes, the
informant went to search for him. Near the shop of Pappu Singh
he saw two motorcycles parked. When he reached there he saw
Pappu Singh, Rijhan Singh and Gauri Shankar Kumar (the
petitioner) scuffling with his son. Three unknown persons also
caught hold of his son and one of them put a gamchha around
his neck. On hulla, people of the locality assembled. Pappu
Singh took out a pistol, gave it to Gauri Shankar Singh (the
petitioner) and ordered him to kill. Gauri Shankar Singh fired
upon his son which hit him near the neck. Though chased, the
accused persons succeeded in fleeing away. The FIR was
formally registered on 23.10.2019.
4. After thorough investigation, police submitted Final
Form No. 178 of 2020. It was found that independent witnesses
did not support the allegation against the petitioner and others.
The CDR of the mobile numbers did not establish the presence
of any of the three at the place of occurrence. On the orders of
superior officials, the investigation against the three was closed
and final form was submitted.
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5. The court of A.C.J.M.-I, Begusarai took cognizance
against Nilesh Kumar alias Rakesh Kumar Singh alias Nilesh
Singh for the offences punishable under Sections 302, 120B and
34 of the IPC and under Section 27 of the Arms Act.
6. The records would show that Sessions Trial No.
107 of 2021 was initiated before the A.S.J.-IX, Begusarai
against the only accused, namely Nilesh Kumar alias Rakesh
Kumar Singh alias Nilesh Singh. Prosecution witnesses were
being examined in this case.
7. It is important to recollect that the final form
against the petitioner was submitted on 31.12.2020. At the time
of taking cognizance on 26.11.2021 against Nilesh Kumar alias
Rakesh Kumar Singh alias Nilesh Singh, the final report was
very much on the record. Still the court did not pass any order
on the final report.
8. It seems that on the application of the informant,
the A.C.J.M.-I, Begusarai on 30.03.2022 passed the impugned
order. It noted that in the original case record cognizance was
taken on 26.11.2021 and that this was a supplementary case
record. It also recorded that the Investigating Officer had
submitted the final report without sending up Pappu Singh,
Pankaj Singh alias Rijhan Singh and Gauri Shankar Singh.
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9. Thereafter the court stated that it had perused the
supplementary case diary as well as the xerox copy of the
original case diary received from the A.S.J.-IX, Begusarai, part
of Sessions Trial No. 107 of 2021, and it found sufficient
material against the petitioner and two others in Paragraphs 5, 9,
10 and 11 of the original case diary. Accordingly, the court held
that the cognizance taken vide order dated 26.11.2021 for the
offences under Sections 302, 120B and 34 of the IPC and
Section 27 of the Arms Act stood extended to the petitioner and
two others.
10. Learned counsel for the petitioner raises a very
pertinent issue. He states that the learned magistrate committed
the case to the Court of Sessions after taking cognizance against
Nilesh Kumar alias Rakesh Kumar Singh alias Nilesh Singh and
became functus officio after commitment of the case to the
Court of Sessions. The counsel states that once the case had
been committed to the Court of Sessions, it was not the
magistrate who could have decided to proceed against the
persons not sent up for trial. The jurisdiction in the instant case
vested in the Court of Sessions, which could have proceeded
either under Section 193 or at a later stage under Section 319 of
the Cr.P.C. The committing magistrate had no power at all to
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pass any order taking cognizance and he exceeded his
jurisdiction in doing so. The counsel cites the case of Hardeep
Singh v. State of Punjab, a Constitution Bench judgment
reported in (2014) 3 SCC 92, and has specifically relied upon
Para 19 thereof, which reads as follows:
“19. The court is the sole repository of
justice and a duty is cast upon it to uphold the rule
of law and, therefore, it will be inappropriate to
deny the existence of such powers with the courts
in our criminal justice system where it is not
uncommon that the real accused, at times, get
away by manipulating the investigating and/or the
prosecuting agency. The desire to avoid trial is so
strong that an accused makes efforts at times to
get himself absolved even at the stage of
investigation or inquiry even though he may be
connected with the commission of the offence.”
Based on the judgment cited, the counsel makes the
submission that the magistrate’s window was pre-committal
only.
11. The counsel further relies upon Dharam Pal v.
State of Haryana, (2014) 3 SCC 306, which at Para 24 makes
it clear that the magistrate’s role in a Sessions triable case is
confined entirely to the pre-committal stage. If the magistrate
disagrees with the police report, he must act on a protest petition
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or suo moto before committing the case. No protest petition was
filed before the A.C.J.M.-I, Begusarai prior to commitment of
the case. Once the A.C.J.M.-I committed the case to the Court of
Sessions, that window closed permanently.
12. The counsel next submits that Dharam Pal v.
State of Haryana (supra) at Paras 27 and 28 makes it clear that
cognizance of an offence can be taken only once. Once
committed to Sessions, the Sessions Court assumes original
jurisdiction. Upon receipt of the committed case, the Court of
Sessions, in this case the A.S.J.-IX, Begusarai, could have
summoned the petitioner and the co-accused under Section 193
on the basis of the materials on record even without recording
evidence. The power vested in the Sessions Court and not in the
A.C.J.M.-I, and the purported exercise by the A.C.J.M.-I of
extending cognizance on 30.03.2022 after committal was
completely without jurisdiction.
13. The parties have jointly informed that Sessions
Trial No. 107 of 2021 before the A.S.J.-IX, Begusarai has
concluded. Two situations existed in law where the petitioner
could have been proceeded against after submission of the final
form. The first window was under Section 193 Cr.P.C.,
whereunder the Sessions Court could have summoned the
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petitioner on the basis of the materials on record at any time
after receipt of the committed case and before the
commencement of trial. The second scope was under Section
319 Cr.P.C., but it operates in the course of any inquiry into, or
trial of, an offence. Once the trial concludes, there is no ongoing
inquiry or trial.
14. In this view of the matter, neither Section 193
Cr.P.C. nor Section 319 Cr.P.C. can now be put into action.
Moreover, the impugned order, being void ab initio and passed
by a court which had already become functus officio, confers no
right and creates no valid proceeding.
15. The petitioner stands entirely discharged from
Phulwariya P.S. Case No. 145 of 2019. No proceeding on the
basis of Phulwariya P.S. Case No. 145 of 2019 or vide order
dated 30.03.2022 can ever be initiated or revived against the
petitioner.
16. In the result, the present quashing application
stands allowed.
(Ansul, J)
amitkr/-
U T
