IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47990 of 2007 1. BAUDH SINGH @ KRISHNA SINGH S/O LATE LALA SINGH 2. RAM KUMAR SINGH S/O LATE LALA SINGH 3. ONKAR JI SON OF BAUDH SINGH 4. GOPAL JI @ RANGNATH JI SON OF BAUDH SINGH, ( ALL ARE R/O VILL. SARAIYA, P.S. SAKURABAD, DIST. JEHANABAD.) ---- PETITIONERS. Versus 1. STATE OF BIHAR 2. SHOBHA KUMARI D/O NARENDRA PRASAD R/O VILL SARAIYA, P.S. SAKURABAD, DIST. JEHANABAD. --- OPP. PARTIES. For the petitioners : Mr. Uma Kant Shukla, Advocate. For the opposite party no.2 : Mr. N.K.Sharma & Mr. Sunil Kumar Advocates. For the State : Mr. Dr. Mayanad Jha, Advocate. ----------- 04. 22.03.2010 Heard the parties. Petitioners challenge the order dated 27.09.2007, passed by the learned Chief Judicial Magistrate, Jehanabad in T.R. No. 1367 of 2007 ( arising out of Sakurabad P.S. Case no. 27 of 2006). Few facts relevant for disposal of this case may be first noticed. The informant ( opposite party no.2) lodged an F.I.R. alleging therein that the petitioners, who are agnates of the informant, arrived at the place of occurrence armed with ‘Lathi’ and started beating her father on head and other parts of the body. The case was investigated. Whereafter the police is said to have filed a charge sheet wherein two of the petitioners herein were not sent up for trial. The police only forwarded two of the petitioners herein for being tried under Sections 341, 323, 504 and other allied Sections of the Penal Code. In other words, the police did 2 not find that the allegation relating to attempt to murder substantiated during the investigation. Prior to filing of the charge sheet the informant had filed a protest petition on 02.08.2006, which was kept on record. Upon receipt of the final report, the learned Magistrate by order dated 08.11.2006, accepted the charge sheet and discharged two of the petitioners. Cognizance was taken under minor Sections of the Penal Code (not under Section 307 of the Penal Code). The informant assailed the aforesaid order by filing the revision before the District and Sessions Judge, Jehanabad, by filing criminal revision no. 72 of 2006. The said revision was heard and disposed of by order dated 15th March, 2007. Paragraph no.6 of the said order reads thus:- “6. Considering all the facts and circumstances and provisions of law and the judgment of the Hon’ble Apex Court in the aforesaid ruling reported in 2004(4) PLJR 193, this court is of the view that it was mandatory provision that the Magistrate should have given notice to the informant before considering the final report and since this mandatory provision of law has not been complied with, this court is of the view that the impugned order is illegal to that extent and it is fit to be set aside and it is set aside. The Court below is directed to give notice and an opportunity to the informant of being heard and thereafter pass appropriate order in accordance with law. With the aforesaid observation, this criminal revision is allowed.” On remand the matter was reconsidered/re-examined by the learned Magistrate, and upon perusal of the entire police report including the case diary, it was found and held that a prima facie case exists for proceedings against all the accused persons 3 under diverse Sections of the Penal Code including Section 307 of the Penal Code. Learned counsel for the petitioners while assailing the impugned order submits that the learned trial Court has failed to consider that there was/were ample provisions in law for summoning of the accused persons (not put on trial) by the superior Court, and as such, the learned Magistrate has fallen in error in taking cognizance against the non charge sheeted accused persons and passing the impugned order. It is next contended that the allegations available on record read along with the injury report would not make out a case under Section 307 of the Penal Code. Learned counsel for the State and learned counsel for the informant have, however, supported the impugned order. It is contended that cognizance is taken of a case and not of the accused persons. It is next contended that the matter was remitted back to the Court for fresh order and as such there was no bar in considering the materials on record and proceedings in accordance with law. Its argued further that whether allegations do constitute offence punishable under Section 307 of the Penal Code is matter of evidence & it can be raised and considered properly at the trial. Considered the submissions advanced on behalf of the parties. This much is clear that the learned Magistrate while passing the initial order dated 08.11.2006 did act incomplete disregard of the provision of law. The protest petition was already on record. Before accepting the charge sheet exonerating 4 some of the accused persons, the learned Magistrate is duty bound to first issue notice to the informant and give her an opportunity to satisfy the presence of prima facie material on record justifying order taking cognizance. Secondly, the provision contained under Section 319 of the Code of Criminal Procedure does not bar the Magistrate in proceeding in accordance with law if the materials on record justify such action. The law makers have provided this additional provision in order to ensure that the ends of justice do not suffer on any count. This Court, on consideration of the materials on record, is convinced that the order impugned does not call for any interference. The application has no merit. It is, accordingly, dismissed. Sym ( Kishore K. Mandal, J.)