IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36384 of 2007 1. BASUDEV PASWAN SON OF LATE NATHUNI PASWAN 2. KIRA PASWAN SON OF LATE GYANCHAND PASWAN 3. DEVENDRA PASWAN SON OF SRI GANINATH PASWAN ALL RESIDENT OF VILLAGE ETWARPUR PAKRI, P.S. LALGANJ, DISTRICT VAISHALI. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. DINESH KUMAR @ DINESH RAI, R/O VILLAGE ETWARPUR PAKRI, P.S. LALGANJ, DISTRICT VAISHALI. ... ... OPPOSITE PARTIES. ----------- 7. 26.10.2010. Heard learned counsel for the petitioners and the State. Three petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 30.8.2006 passed in G.R. No.1348 of 2005/Tr. No.1835 of 2007 (arising out of Lalganj P.S. Case No.103 of 2005). By the said order, learned Magistrate has taken cognizance of the offence under Sections 147, 324 and 307 of the Indian penal Code and Sections 3 and 5 of the Explosive Substance Act even against three petitioners, who were not sent up for trial by the police after completion of investigation. Learned counsel appearing on behalf of the petitioners has firstly argued that 2 the learned Magistrate was not competent to take cognizance of the offence against the petitioners since they were not forwarded by the police to face trial. It has been submitted that charge sheet was submitted against only two accused persons. Learned counsel for the petitioners, in support of his stand, has referred to number of judgments. He has specifically relied on a single Bench decision of this Court reported in PLJR 2007(2)825 (Ram Nandan Singh @ Ram Nandan Yadav Vs. State of Bihar & anr.) and also a judgment of Hon’ble Supreme Court reported in Supreme Court Cases 2004(13)11 (Kishori Singh & ors. Vs. State of Bihar & anr.). Learned counsel for the petitioners has further submitted that in the present case, no prosecution sanction in respect of prosecution of petitioners in the Explosive Substance Act was on record and as such without prosecution sanction, learned Magistrate was not authorized to take cognizance under Sections 3 and 5 of the Explosive Substance Act. Shri Ajay Kumar Thakur, learned counsel appearing on behalf of the 3 petitioners, at the time of hearing of this petition, has candidly admitted that there is no dispute that the Magistrate, differing with the police report, can take cognizance of the offence, if there are materials available in the case diary and the police report. Learned counsel for the petitioners has further submitted that the learned Magistrate, at the time of taking cognizance, has incorrectly referred paragraphs 24, 31 and 44 of the case diary for coming to the conclusion that prima facie case was made out against the petitioners. It has been submitted that in those paragraphs of the case diary, supervision note and opinion of police officers were recorded. Learned counsel for the petitioners has submitted that so far allegation of being order giver is concerned, that allegation was made in respect of petitioner nos.1 and 2 not in respect of petitioner no.3. Shri A.M.P. Mehta, learned Additional Public Prosecutor appearing on behalf of the State, has opposed the prayer of the petitioners. It has been submitted by Shri Mehta that in the F.I.R., there is specific 4 allegation against all the three petitioners. It has been submitted that besides other accused persons, three petitioners were named in the F.I.R. as accused and in the F.I.R., there is allegation that on the order given by these petitioners, one of the co-accused threw bomb over the informant. It has been submitted that in the case diary also, there is sufficient material showing involvement of the petitioners. Besides hearing learned counsel for the parties,I have also perused the materials available in the case diary,which was earlier received pursuant to the order dated 6.8.2010 passed by this Court. In ordinary course, it is not required for this Court to examine and peruse the case diary, while hearing a petition under Section 482 of the Code of Criminal Procedure. However, since in the present case, by a judicial order, case diary was called for, this Court has also perused the case diary. On perusal of the case diary, the court is satisfied that there are sufficient materials showing involvement of all the three petitioners and while taking cognizance of the offence, the learned 5 Magistrate has committed no mistake. So far as question of sanction for prosecuting petitioner under Sections 3 and 5 of the Explosive Substance Act is concerned, the court is of the opinion that those materials can be examined at the time of framing of the charge, not at this initial or interlocutory stage. Time without number, it has been reiterated that this Court should refrain from interfering with the criminal proceeding at initial or interlocutory stage. It has also been held that power under Section 482 of the Code of Criminal Procedure is to be exercised in exceptional and rarest of rare cases. The court finds that petitioners have not made out an exceptional or rarest cases warranting exercise of inherent power under Section 482 of the Code of Criminal Procedure. The case diary indicates that all the petitioners were actively involved in the crime. Accordingly, the petition stands rejected. In view of rejection of this petition, interim order dated 13.11.2009 stands automatically vacated. 6 N.H./ Let a copy of this order along with case diary, which was received earlier, be sent to the court below forthwith. ( Rakesh Kumar,J.)