IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.20822 of 2007 ***** Paritosh Kumar Ghosh, son of Pravesh Chandra Ghosh, Resident of Chara Bargaon, P.S. Sajaur, District-Bhagalpur. …. …. Petitioner Versus 1. The State of Bihar. 2. Madhusudan Prasad Singh, The Development Officer (Inspection) of Munger, Jamui Central Co-operative Bank, Munger. …. …. Opposite parties ----------- 5. 15.5.2009. Kharagpur P.S. Case No.186 of 1993 was instituted under Section 409, 34, 120B of the Indian Penal Code and many persons have been made accused. After due investigation charge sheet came to be filed against large number of accused. Petitioner was also charge-sheeted but in the order taking cognizance on 2.5.2005, the Court did not record the name of this petitioner as one of the persons who had to be tried. The order taking cognizance has been brought on record, which shows that the name of the petitioner does not figure but name of one of the accused Vishnu Prabhakar figures twice over. A subsequent development thereafter has taken place because a warrant came to be issued against the petitioner. He approached the Court below with a petition to recall the warrant in view of the fact that no cognizance had been taken. The matter was looked into by the Court of Sub Divisional Judicial Magistrate, Munger and he recorded an order dated 16.12.2006 holding that there seems to be a clerical error in the order taking cognizance because charge-sheet came to be submitted even against the petitioner and cognizance has been taken against all the accused, charge-sheeted by the police. He forwarded the order to the - 2 - Court of Chief Judicial Magistrate, Munger explaining the circumstances. The matter also came to be examined by the Court of Chief Judicial Magistrate and the order impugned dated 4.1.2007 came to be passed, who also certified and recorded that there is an obvious error of the clerical kind as to the reason why the name of the petitioner has not been recorded or incorporated in the order taking cognizance on 2.5.2005. The record was returned to the Court of Sub Divisional Judicial Magistrate for trial. Petitioner is now before this Court challenging the said order. Submission of learned counsel for the petitioner is that cognizance of an offence cannot be taken twice over. If the learned Chief Judicial Magistrate initially did not choose to take cognizance against this petitioner then obviously there was an error in issuance of warrant or other process against him and he ought not or could not be proceeded against. The order of cognizance must be read as it stands and the same cannot be modified or altered. In that view of the matter, the order of the Sub Divisional Judicial Magistrate stating that there is a clerical mistake or error which needs to be corrected and affirmation of the said position by the learned Sub Divisional Judicial Magistrate is also an illegality and error not permissible under the law. Learned counsel representing the opposite party submits that a bare perusal of the charge-sheet filed by the police after investigation would show that the petitioner very much figured in the list of the accused who needed to be tried for the offence. There is an obvious error of the clerical kind in the order taking cognizance. The reasons are two fold; (i) that one persons has been named twice over in the order, - 3 - namely, Vishnu Prabhakar and (ii) the name of this petitioner does not figure because of that reason. In addition if the Court taking cognizance wanted to exonerate the petitioner of the liability then the Court would have categorically recorded in so many words that such and such person or accused is not being sent-up for trial or at least the reason thereof as to why despite charge-sheet the Magistrate is disagreeing with the police. There is no reflection of the kind in the initial order taking cognizance. Additional circumstance which emerges from the record is that the petitioner has been treated as an accused and that is the reason why ultimately warrants and other processes have come to be issued against him and that is the situation under which the Court below of the Sub Divisional Judicial Magistrate and the Chief Judicial Magistrate have ordered modification or incorporation of the name on the basis of a clerical mistake after petitioner filed a petition for recall. On a close examination of the material on record, the Court is inclined to accept and certify the position taken by the Court of Sub Divisional Judicial Magistrate and Chief Judicial Magistrate because there is no explanation or circumstance why the petitioner ought to have been let off from the order taking cognizance when the police had found evidence and it decided to charge-sheet him. To that extent the Court does not find an infirmity of the kind which requires interference. But the Court is constrained to record that the Courts taking cognizance have to be careful in not only passing the order but also before signing it to see that a situation of this kind is not allowed to be repeated or happens a second time over. Criminal Courts have a duty, therefore, to - 4 - ensure that there is no element of negligence or mistake even of the clerical kind to come into play. The Court below are only cautioned in this regard but so far as merits of the matter is concerned, the Court does not find any occasion to interfere with the same and the application is dismissed. Pawan/- (Ajay Kumar Tripathi, J.)