IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40189 of 2009 MUNNA KUMAR Versus STATE OF BIAHR ----------- 2. 16.12.2009 Heard Shri Jitrendra Singh, learned Senior counsel appearing for the petitioner and Shri Dashrath Mehta, learned A.P.P. for the State. Before coming to the merits of the contentions which have been raised during hearing of the present renewal prayer, I must first take notice of an utterly illegal order passed by Ist Additional Sessions Judge, Bettiah, in Sessions Trial No.326 of 2009 on 5.10.2009 by which he has set aside the order of cognizance passed by the Chief Judicial Magistrate, Bettiah, on 2.4.2009 because further investigation was still continuing in the case. The learned Additional Sessions Judge appears not aware of the decisions of the Apex Court rendered in State of Maharashtra Vs. Sharadchandra Vinayak Dongre & Ors. reported in 1995 S.C.C.(Cri.)16. If the Chief Judicial Magistrate was satisfied 2 about sufficiency of the materials which were collected by the investigating agency during investigation of a case, even at the stage of submission of an incomplete charge sheet, as was the case in that reported case, then, there was no bar in the jurisdiction of the Chief Judicial Magistrate to summon those accused persons also against whom the investigation could have been kept pending. Likewise, reopening a case fur further investigation under Section 173(8) Cr. P.C. must not be a bar in taking cognizance of offence on sufficient materials if those could be available to a court till a particular stage of the investigation. Even if the police comes to a conclusion that no offence was made out or there was no sufficient material for filing the report under Section 173(2) Cr.P.C. still the Magistrate could differ with the opinion of the Investigating Officer and take his own decision by recording his own reasons to summon one or the other accused persons. This was settled long back and also by the Full Bench decision of this Court in Kuli Singh 3 and Ors.Vs. The State of Bihar reported in 1978 P.L.J.R.500. If the order of the learned Ist Additional Sessions Judge, noted above, is tested on the principles of law already decided by this Court in the light of the earlier decisions in Raghubansh Dubey Vs. State of Bihar reported in A.I.R. 1967 S.C. 116, etc., the legality of the finding and the direction for remitting back the matter to the Chief Judicial Magistrate to wait till further investigation could come to an end may be appreciated. I would, as such, direct the Chief Judicial Magistrate, Bettiah, in the light of my inherent powers, not to abide by the order passed by the Ist Additional Sessions Judge, Bettiah, dated 5.10.2004 passed in Sessions Trial No.326 of 2009 as this direction is necessary to be issued under “ otherwise to secure the ends of justice.” Having said the above, I must notice now the submissions of learned counsel for the petitioner. It was contended that someone filed a petition before the State Human Rights Commission and that directed an 4 investigation by an Officer in the rank of Deputy Inspector General of Police, West Champaran, Bettiah, and a report was accordingly submitted on holding of a full- fledged enquiry and it was reported that no case under Section 376 of the I.P.C. was made out. The Deputy Inspector General of Police, reported that it was at best a case under Section 354 of the Penal Code. It was contended that just a day after the occurrence a solitary medical man was examining the victim and a full-fledged Board constituted for the purpose was re-examining the finding of the solitary Doctor as also the victim and then coming to a conclusion that there was no signs of rape apparently available on the person of the victim. It was contended, as such, that in the backdrop of serious infirmities noted above and the political rivalry which was in the root of the litigation it was simply unvbelievable that a boy of the rival group will be committing the crime with the victim as alleged. Learned A.P.P. has resisted the 5 prayer for bail and has contended that the claim of the victim that she was raped could in itself be sufficient to pass any order, even an order of conviction. After having considered the contentions of the parties carefully what appears is that the Deputy Inspector General of Police was not reporting that there was no incident taking place, what he has done is that he has minimized the offence in his report from 376 to 354 I.P.C. That further lends a support to the earlier report that there was some incident in the manner as was alleged and if I accept that part of the story, then, I do not have any reason to say that the whole story may be a farce. Considering this, I do not find any merit in the prayer for bail. I direct the chief Judicial Magistrate, Bettiah, to proceed in the matter ignoring the orders of Ist additional Sessions Judge, commit the case to the court of Sessions which shall be tagged with the above noted Sessions Trial and as soon as the prosecutrix is examined, who I believe 6 should be in the first initial two witnesses, in the trial, the petitioner may come up before this Court with a fresh prayer for bail. The petition is dismissed. Kanth ( Dharnidhar Jha, J.)