IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16150 of 2006 BINOD KUMAR VERMA Son of Sri Kaushal Kr. Verma, Resident of Ara, P.S. Town ,District- Bhojpur ( Ara) --------- Petitioner Versus 1. STATE OF BIHAR 2. Surendra Prasad Srivastava S/O Late Jaggarnath Prasad Srivastava R/O Bharpura, P.S. Sonepura, District –Saran, presently Block Education Officer, Ara, District –Bhojpur -------- Opp.Parties ----------- For the petitioner : M/S Ajay Kumar Thakur, and Amir Alam, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : None. ----------- O R D E R This application by one of the two F.I.R. named accused of Ara ( Town ) P.S.Case no.154 of 2004 is for the quashing of the order dated 3.3.2006 passed therein by the learned Chief Judicial Magistrate, Bhojpur at Ara, whereunder he has taken cognizance against both the accused for offences under Sections 409,420,201/34 I.P.C. and has issued processes against them for facing the trial. The aforesaid case was registered under Sections 409,420 I.P.C. on the basis of a written report submitted by one Surendra Prasad Srivastava, Regional Education Officer, Ara, Bhojpur,inter alia alleging that the two accused , Bharat Bhushan Singh, Incharge Head Master and the petitioner, an Assistant Teacher, of the High School, Chowk, Ara, had fraudulently obtained 8 quintals 19 kg of wheat under the Posahar scheme by showing a false number of students in the school and thereafter had misappropriated the same for their own - 2 - benefit. Assailing the impugned order, it has been submitted on behalf of the petitioner that he is innocent and has been falsely implicated in this case. In this connection it was submitted that it transpired in course of investigation that the petitioner, an Assistant Teacher in the school in question had no role at all to play in the lifting of the wheat and it was the Incharge Head Master who had lifted the wheat in question. It also transpired that the petitioner being disabled ( viklang ) physically was entrusted only with the teaching work and almost all the witnesses examined in course of the investigation had stated of the petitioner having no role to play in the lifting of the wheat under the Posahar scheme. It was also submitted that a departmental proceeding was initiated against the petitioner whereat he was exonerated of all charges and the same was communicated to the petitioner vide Memo no. 2641 dated 18.9.2004 of the District Superintendent of Education, Bhojpur. The said Memo along with the decision of the Apex Court in P.S. Rajya Vrs. State of Bihar, reported in (1996) 9 SCC 1 was filed in the court, but notwithstanding the same, cognizance has been taken against the petitioner against the cannon of natural justice by ignoring the aforesaid documents and that too when there was no culpable material against the petitioner in the case diary. It is by now well settled by a catena of decisions of this Court as also the Apex Court that before process is issued, the accused has no right to be heard. The Code does not contemplate the - 3 - holding of two trials- one before the issue of process and one after the issue of processes. In that view of the matter, the learned Magistrate was justified in not considering the Memo and decision filed by the petitioner. However, there is another aspect of the matter. It is by now well settled by a series of decisions of the Apex Court that cognizance cannot be taken unless there is at least some materials indicating the guilt of the accused. Reference in this connection may be made to the case of Harish Chandra Prasad Mani Vrs. State of Jharkhand, reported in 2007 AIR SCW 1077 and Ram Nandan Singh –Vrs. State of Bihar reported in 2007 (2) PLJR 825. In the present case, there is not even an iota of materials indicating the guilt of the accused petitioner. It is true , as held in Harish Chandra Prasad Mani’s case ( Supra ) that at the stage of taking cognizance adequacy of evidence will not be seen by the Court, but there has to be at least some materials implicating the accused and cognizance cannot be taken merely on the basis of the charge sheet without pointing out, even barely, as to what are the materials available in the case diary to show the complicity of the accused in the crime. Having given my anxious thoughts to the matters in issue I am persuaded to quash the order of cognizance and issuance of process against the petitioner alone on the premises and observations as laid down in the decisions aforesaid. In the result the application is allowed and the impugned order dated 3.3.2006 passed by the learned - 4 - Chief Judicial Magistrate, so far as the petitioner is concerned is quashed . However, in the event of materials coming forth in course of trial of the co-accused showing the involvement of the petitioner, the trial court shall be at liberty to summon him under Section 319 Cr.P.C. ( Abhijit Sinha, J) Patna High Court,Patna Dated : the 17th October,2008 Nawal Kishore Singh/ A.F.R.