Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.20300 of 2011 Sudhir Sahni @ Dr. Sudhir Sahni, Son of Late Mushar Sahni, Resident of Mohalla – New Abhanda, Krishna Nagar, Police Station – Laheriasarai, District – Darbhanga. ……….. Petitioner Versus The State Of Bihar …….. Opposite Party ---------------------------------- 2 13.01.2012 Heard Sri Girish Chandra Jha, learned counsel for the petitioner and Sri Shyam Bihari Singh, learned Additional Public Prosecutor. The petitioner in the present petition which has been filed under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 05.05.2011 passed by learned Chief Judicial Magistrate, Darbhanga in Laheriasarai P.S. Case No. 562 of 2010 whereby the learned Magistrate has taken cognizance of the offence under [STATUTE] . Short fact of the case is that, on the basis of fardbeyan of one Gautam Kumar an F.I.R. vide Laheriasarai P.S. Case No. 562 of 2010 was registered on 13.12.2010 under [STATUTE] against the petitioner and one another along with other unknown accused persons. In the case after registering F.I.R., Police investigated the case and charge sheet was submitted on 21.03.2011 against six accused persons who were not named in the F.I.R. The name of the petitioner and one another was mentioned in column no. 12 (xv) of the charge sheet. It was indicated that till date involvement of the petitioner i.e. Sudhir Sahni and Dilip Khattick who were named in the F.I.R. had not surfaced and it was further 2 indicated that investigation in respect of others was still continuing. On the basis of the charge sheet submitted by the Police the learned Chief Judicial Magistrate took cognizance of the offences under [STATUTE] against six accused persons who were forwarded to face trial by the Police. However, the learned Chief Judicial Magistrate passed the order in the following term: “As accused persons Sudhir Sahni and Dilip Khattick has not been sent up so further proceeding of the case against these two accused persons are hereby dropped.” During further investigation involvement of the petitioner and others surfaced, and as such, supplementary charge sheet was submitted on 05.04.2011 against the petitioner and another. On the basis of supplementary charge sheet the impugned order has been passed. Sri Girish Chandra Jha, learned counsel for the petitioner has argued that once the learned Chief Judicial Magistrate on the basis of first charge sheet had dropped the proceeding against the petitioner at subsequent stage the learned Magistrate was not authorized to take cognizance of the offences against the petitioner. It was submitted that virtually by the impugned order the learned Magistrate had reviewed his earlier order which was not permissible in the eye of law. Learned counsel for the petitioner in support of his argument has relied on a single bench judgment of this court 3 reported in 2005 (3) PLJR 753 (Umesh Roy & Ors. Vs The State of Bihar & Anr.). On the strength of aforesaid judgment it has been argued that once the proceeding was dropped against the petitioner, only provision for making the petitioner an accused is available under Section 319 of the Code of Criminal Procedure, and as such, it has been prayed to set aside the impugned order. So far Umesh Roy Case (Supra) is concerned, it is not in dispute that on the same material learned Magistrate was not authorized to take cognizance of the offence. It is true that learned Magistrate is empowered to take cognizance of the offence differing with the Police report, but at the same time, on the same material, the learned Magistrate was not authorized to take cognizance of the offence. However, in the fact and circumstances of the present case, it is evident that the impugned order i.e. the order of cognizance was not passed on the same material which was available earlier at the time of taking cognizance. At first instance, cognizance was after submission of first charge sheet. Perusal of the first charge sheet makes it clear that investigation was still continuing. However, the Police in its report had indicated that till submission of the charge sheet involvement of the petitioner and one another had not surfaced. During further investigation, as per the supplementary charge sheet, it appears that materials indicating involvement of the petitioner and another had surfaced, and thereafter, supplementary charge sheet was submitted by the investigating agency on the basis of materials collected during further investigation and on the basis 4 of supplementary charge sheet the learned Magistrate has taken cognizance of the offence. In the facts and circumstances of the present case it is evident that on the same material learned Magistrate has not proceeded but the Magistrate has proceeded on the basis of materials collected during further investigation, and as such, I do not find any defect in the impugned order. So far as dropping of the case against the petitioner on the basis of first charge sheet is concerned, the court is of the opinion that, it was an error, but on technical ground, in a case registered under Section 302 of the Code of Criminal Procedure, in which, there was specific accusation against the petitioner, on technical ground, the impugned order may not be interfered with. Accordingly, I do not find any material to interfere with the impugned order. The petition stands dismissed. Praful ( Rakesh Kumar, J.)

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.