IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10033 of 2006 SURESH PRASAD SINGH & ANR Versus STATE OF BIHAR ----------- For the Petitioners: Mr. Ajay Kumar Thakur and Mrs. Madhuri Kumari, Advocates. For the State : Mr. Jharkhandi Upadhayay, A.P.P. -------------- O R D E R Two of the four F.I.R. named accused of Khajauli P.S. Case No.116 of 2005 have filed this application for quashing of order dated 18.1.2006 passed therein by the learned Chief Judicial Magistrate, Madhubani, whereby he has taken cognizance of offences under Sections 25(1)(a)b, 26(ii) and 35 of the Arms Act against all the accused including the petitioners. The prosecution case is based on the self statement of S.I. Dilip Kumar recorded at about 7 A.M. on 10.10.2005. According to the informant, he earlier on that day, on receipt of confidential information, along with other police personnel and the chaukidar, apart from other houses also raided the house of one Munna Singh, son of Suresh Singh, at Village Lakshmipur under Khajauli P.S. and in the presence of two independent witnesses recovered four wooden butts and four barrels of guns, one country made pistol of 0.12 bore, one country made pistol of 0.315 bore, one leather belt for carrying cartridges , five live cartridges of 0.315 bore and 15 live cartridges of 0.12 bore and when no documents authorizing retention of such arms and ammunitions or any satisfactory answer could be furnished by the - 2 - family members justifying their presence the same were seized under a seizure list. It has been submitted on behalf of the petitioners that from a perusal of the self statement of the S.I., the seizure list and the case diary it would be an admitted position that the alleged raid was carried out in the house of Munna Singh and in course thereof nothing was recovered from either the person or possession of these two petitioners nor was there any material in the case diary to show their connection or involvement with the seized items or that the same belonged to them in any way or that they had knowledge of such arms and ammunitions being stored in the house of Munna Singh and notwithstanding the same they have been dragged in only because they happen to be family members although living separately. Summoning of an accused in a criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. Before summoning an accused to face trial on a criminal charge, the Magistrate has to carefully scrutinize the evidence brought on record to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. In the instant case the learned Magistrate appears to have proceeded to take cognizance of the offence without going through the materials available on record including the police report so as to find out if the facts stated and materials collected in course of investigation made out any such offence. Unfortunately, in the present times a dangerous precedent has set in where it has become a routine on the - 3 - part of the Judicial Magistrate to borrow in their orders the sections mentioned in the police reports or complaints while taking cognizance and even while framing charges, without adverting to the relevant facts vis-a vis penal sections mentioned and making sure whether or not these facts actually constitute the offences mentioned. This, to my mind, does not amount to an application of judicial mind by a Magistrate taking cognizance. Be that as it may, the fact remains that even if what has been stated by the prosecution in the F.I.R. and the materials collected in course of investigation are taken on their face value no offence under the provisions of the Arms Act whereunder cognizance has been taken are not shown to have been committed by these petitioners. For the reasons, stated above, the application is allowed and the order taking cognizance by the impugned order by the learned Chief Judicial Magistrate, so far as these petitioners are concerned, is hereby quashed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 6th of August, 2008. Pradeep Srivastava/A.F.R.