IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.25842 OF 2009 1. BIRENDRA TIWARY, SON OF LATE VISHWANATH TIWARY, RESIDENT OF VILLAGE BABA NAGAR, POLICE STATION VISHNUPURI, DISTRICT BUXAR 2. BIRENDRA PRADHAN, SON OF LATE GOURI SHANKAR PRADHAN, RESIDENT OF DORANDA, POLICE STATION DORANDA, DISTRICT RANCHI ……………………………………………………………………………PETITIONERS VERSUS THE STATE OF BIHAR ******* FOR THE PETITIONERS :- MR. AJAY KUMAR THAKUR, ADVOCATE MR. ARUN KUMAR, ADVOCATE MR. BIPIN KUMAR, ADVOCATE ***************** 2 18/08/2009 Heard learned Counsel for the petitioners and the A.P.P. appearing on behalf of the State. This application has been filed for quashing the order dated 08.05.2008 by which the Chief Judicial Magistrate, Buxar has taken cognizance under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. The main contention on behalf of the petitioners is that the order taking cognizance clearly shows non-application of the mind of the Court below. In this case, three charge sheets were submitted. In the first charge sheet (Annexure-2), Satyam Tiwary, Aarzoo Khan and Vishal Tiwary were made accused. In the second charge sheet dated 2 14.06.2004, Arvind Tiwary and Om Prakash Choubey have been made accused. It appears that Om Prakash Choubey and Vishal Kumar Tiwary were tried and acquitted in this case by judgment dated 25.08.2006 passed by the Additional Sessions Judge, Fast Track Court No. II, Buxar in Sessions Trial No. 65 of 2006. Subsequently, the third charge sheet dated 16.01.2009 was submitted in which the present petitioners have been made accused. Learned Counsel for the petitioners submits that even if for the sake of argument, the whole prosecution case is accepted in its totality, the only evidence that has come against these petitioners is that they had conspired to allow the main accused persons to avoid their arrest by getting them admitted in a hospital at Ranchi. This fact was available in the confessional statement of the co-accused Vishal Kumar Tiwary at the very beginning, still the petitioners were not sent up for trial and after five years, a charge sheet has been submitted under Section 302/34 of the Indian Penal Code although the petitioners have neither conspired nor have been shown to be involved in the commission of the alleged crime. Considering the aforesaid facts, the 3 order taking cognizance dated 08.05.2009 is hereby quashed and the matter is remanded to the Chief Judicial Magistrate, Buxar to apply his mind on the fact that the charge sheet has been submitted after five years of the alleged occurrence and pass an appropriate order in accordance with law. This application is disposed of with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J. )