IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24907 of 2007 1. JAG MOHAN MANJHI @ JAG MOHAN LAL MANJHI, Son of Sahdeo Manjhi, 2. Akhilendra Kumar Rajan @ Guddu Manjhi, Son of Sri Jag Mohan Manjhi, Both residents of Village- Khorodih, P.S. Kopa, District- Saran 3. Anita Devi Wife of Upandra Manjhi, daughter of Hari Pal Manjhi, resident of Village- Bhatkeshari, P.S.Jalalpur, District-Saran ------------------ Petitioners Versus 1. THE STATE OF BIHAR 2. Shri Kishun Manjhi, Son of Santlal Manjhi, resident of Village- Baripur, P.S. Baniapur, District-Saran ----- Opp.Parties. ----------- For the petitioners : M/S Mahesh Narayan Parbat, Sanjay Kumar Jha, and Parbeen Prabhakar, Advpcates For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : None. ------------ O R D E R The petitioners through this application have prayed for the quashing of the order dated 13.10.2006 passed by Sri Shambhu Nath Singh, 9th Additional Sessions Judge, Saran at Chapra, through which he has been pleased to allow the criminal revision in absence of the petitioners and modified the order dated 8.11.2004 passed by the learned Chief Judicial Magistrate, Saran at Chapra in Complaint Case no.736 of 2003, arising out of the protest filed in Kopa P.S. Case no.12 of 2002, whereby he was pleased to refuse to take cognizance of offence under Section 304 B /34 I.P.C. against the present petitioners and the entire proceedings arising following the order passed in the criminal revision. One Shri Kishun Manjhi , the complainant, impleaded - 2 - herein as Opp.Party no.2, had initially filed a written application before the Officer Incharge , Kopa Police Station on 13.2.2002 regarding an incident, which took place on the same day and on the basis thereof Kopa P.S. Case no.12 of 2002 was registered under Section 304B/34 I.P.C. against Pawan Manjhi, Shanti Devi and Sunil Manjhi, the three persons named in the written report. The police after due investigation did not find the case to be true and found that the complainant’s daughter had instead been burnt in an accidental fire while she was preparing meals and died at the Sadar Hospital , Chapra, in course of her treatment. The final form submitted by the police was accepted by the learned Chief Judicial Magistrate, Saran at Chapra and the protest petition filed by the complainant in the meantime having been numbered as C-736 of 2003 was taken up for enquiry under Section 202 Cr.P.C., wherein he named six persons as accused. Altogether six witnesses were examined by the complainant apart from himself who though not being the eye witnesses of the alleged incident tried to support the prosecution case as made out in the protest petition and tried to implicate the present petitioners through omnibus allegations. Following the enquiry, the learned Magistrate notwithstanding the contradictory statements of the witnesses who either were co-villagers of the complainant or his henchmen took cognizance under Section 304B/34 I.P.C. against only the three persons who had been arrayed as accused in the police case. Aggrieved by the said order, the complainant approached the Sessions Court through Cr.Revision No.24 of 2005, which was - 3 - finally heard in absence of the petitioners by the 9th Additional Sessions Judge, Saran at Chapra who was pleased to allow the same allegedly in complete violation of the provisions of the law as enumerated in Section 401 (2) Cr.P.C. and modified the order of the learned Chief Judicial Magistrate, Saran at Chapra taking cognizance with a direction to issue summons in the said case against these three petitioners also, whereafter the petitioners have also been impleaded as accused in this case. The main grievance of the petitioners herein is that although they had not been named as accused in the police case and were sought to be implicated subsequently through protest petition filed by the complainant, the revisional court without issuing notice to them or hearing them passed the impugned order and the same amounted to an infringement of the rights of the petitioners to be heard before an adverse order against them was passed behind their back. I have perused the impugned order of the revisional court and it is apparent therefrom that only the Addl.P.P. had been heard. There is no indication in the said order that notices were even issued to these petitioners before an adverse order was passed against them. It is also apparent therefrom that the initial order taking cognizance against the three persons arrayed as accused in the protest petition was held to be an erroneous act of the learned Magistrate since notwithstanding sufficient materials available in the record from the enquiry under Section 202 Cr.P.C., the learned Magistrate had failed in his duty of taking cognizance as against these three petitioners. - 4 - To my mind before an adverse order was passed against the petitioners the revisional court ought to have noticed them and passed the impugned orders only after hearing them or their learned counsel. The failure to invite appearance before an adverse order against them is passed, to my mind, appears to be in violation of the principles of natural justice. Accordingly, this application is allowed and the impugned order modifying the order of the learned Magistrate and issuance of summons against them is apparently illegal and is quashed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 3rd March,2009 Nawal Kishore Singh/ A.F.R.