Case Facts:
Patna High Court Cr.Misc. No.26710 of 2010 (7) dt.21-11-2012 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.26710 of 2010 ====================================================== Anil Singh & Anr .... .... Petitioner/s Versus State Of Bihar .... .... Opposite Party/s Appearance: For the petitioners : Mr. Ajay Kumar Thakur, advocate For the State : Mr. Sanjay Kr. Tiwari, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER --------- 7 21.11.2012 Heard learned counsel for the petitioners as well as learned Addl. Public Prosecutor on the point of admission and with the consent of both the parties, this court proceeds to decide this matter on admission stage itself. Petitioners being brothers-in-law of the deceased were made accused in a case registered under [STATUTE] but in course of investigation, it came to light that marriage of the deceased had taken place 16 to 17 years ago. In spite of the aforesaid fact, police submitted charge sheet under [STATUTE] against other accused whereas the petitioners were not sent up for trial. Learned Chief Judicial Magistrate, Nawada differed with the findings of the police and took cognizance against the petitioners also. The order of learned Chief Judicial Magistrate was challenged before learned Sessions Judge, Nawada in Criminal Revision no.7/2008 which was allowed and the order of learned Chief Judicial Magistrate, Nawada was set aside and the matter was remitted back to the concerned court with a direction to pass a fresh order and after that learned Chief Judicial Patna High Court Cr.Misc. No.26710 of 2010 (7) dt.21-11-2012 2 Magistrate having perused the case diary and other materials, passed the impugned order dated 10.5.2010 by which he took cognizance for the offence under [STATUTE] against the petitioners and others. The contention on behalf of the petitioners is that learned Chief Judicial Magistrate, Nawada has not assigned any reason in his impugned order for taking cognizance against these petitioners and furthermore, co–accused Sunil Singh has already been acquitted by trial court and, therefore, the prosecution of the petitioners is nothing but only an futile exercise. It is also contended by him that there is nothing on the entire case diary to show complicity of the petitioners in the alleged crime. Learned Addl. Public prosecutor appearing for the State supported the impugned order arguing that learned Magistrate has got ample power to differ with the findings of the police and so even if the petitioners were not sent up for trial by the police, then also, there is no illegality in the impugned order. It is further contended by him that so far as non-availability of the material against the petitioners is concerned, the petitioners may raise the aforesaid plea before the trial court at appropriate stage. In view of the aforesaid facts and circumstances as well as submissions of the parties, this petition stands dismissed on admission stage itself with a liberty to the petitioners to raise their plea before trial court at appropriate stage and if they do so, learned trial court shall pass order in accordance with law without being prejudiced by this order. Shahid ( Hemant Kumar Srivastava,J) Patna High Court Cr.Misc. No.26710 of 2010 (7) dt.21-11-2012 3

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.