- (1.) The present application under Section 482 CrPC has been filed with the prayer to set-aside / quash the impugned cognizance order dated 1.3.2016 passed by the Chief Judicial Magistrate, Gorakhpur in criminal case no. 631 of 2016 arising out of case crime no. 303 of 2015 under Sections 302, 323 and 504 IPC, P.S. Jhangaha, District Gorakhpur whereby the concerned Court took cognizance against the applicants for offences under Sections 323, 504 and 302 IPC whereas charge-sheet was filed under Sections 304, 323 and 504 IPC. Further prayer has been made to stay the further proceedings of the aforesaid case.
(2.) Heard Shri Rajul Bhargava, learned counsel for the applicants and the learned AGA appearing for the State.
(3.) It was submitted by the learned counsel for the applicants that charge-sheet in the matter was submitted for the offences under Sections 304, 323 and 504 IPC but the concerned Magistrate vide impugned order dated 1.3.2016 took the cognizance for the offences under Sections 302, 504 and 323 IPC, which is illegal. Essential ingredients to constitute the offence under Section 302 IPC are lacking. Referring to the injury report and the statement of witnesses recorded under Section 161 CrPC, it was submitted that the bail application of the applicants was allowed for the offence under Section 304 IPC. Hence, at this stage, there was no necessity to take cognizance for the offence under Section 302 IPC. The impugned order suffers from illegality and infirmity and is liable to be quashed by this Court.;