IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.316 of 2009 1. RAMJEE JAISWAL SON OF LATE CHANDRAMA JAISWAL. 2. RAJESH KUMAR @ RAJESH KUMAR JAISWAL SON OF RAMJEE JAISWAL BOTH RESIDENT OF SHIV NARAINPUR, POLICE STATION KAHALGAON, DISTRICT-BHAGALPUR. ….OPPOSITE PARTIES NO.2/PETITIONERS. Versus 1. STATE OF BIHAR. 2. DINESH PRASAD JAISWAL SON OF LATE SUKHDEO PRASAD JAISWAL, RESIDENT OF VILLAGE TONGARIA KURSHAILA, POLICE STATION KURSHAILA, DISTRICT- KATIHAR. -----PETITIONER/OPPOSITE PARTIES. Petitioner : Dr. Manoj Kumar, Advocate. State : Dr. Kumar Uday Pratap, A.P.P. O.P. - : Mr, Bhola Prasad, Advocate. ----------- 4. 04.04.2011 Heard learned counsel for the petitioner and the State. The petitioners were made accuseds in Kahalgaon P.S. Case No. 133 of 2007 instituted under Sections 304B, 120B/34 of the Indian Penal Code based on an F.I.R. lodged by the opposite party no. 2. The investigation was carried out whereafter a final report was submitted concluding therein that it was a mistake, on fact. It appears that the Magistrate in seisin of the matter issued notice to the informant who appeared and filed protest petition. Learned Magistrate accepting the submission of the State that the informant was ready and willing to pursue his protest-cum-complaint petition, the said report was accepted and the matter was made over to another court for inquiry in terms of Section 192 of the Code. Aggrieved by the aforesaid order, the informant filed criminal revision No. 151 of 2008. After issuing notice to the parties, the matter was heard and the revisional court took the 2 view that in view of the provisions of the code the Magistrate was first obliged to apply his judicial mind with respect to materials collected in course of investigation and only thereafter the report was to be deferred with or accepted. The court being the final arbiter was required to apply his judicial mind. Revisional court found that the said legal obligation cast on the court has not been discharged. Accordingly, order dated 6.3.2008 passed by the learned Magistrate was set aside and the case was remitted back to the court below for proceeding in accordance with law after perusal of the materials collected in the case diary. The matter is now, before the Magistrate who has to apply his mind afresh and pass appropriate order in accordance with law. Before proceeding further it may be observed that it is the positive case of the informant (O.P. No. 2) that there is sufficient/adequate materials in the case diary justifying taking cognizance under Section 304B and allied provisions of the Indian Penal Code. Learned counsel appearing in support of the application submits that the order passed by the magistrate was interlocutory in nature and as such revision could not have been filed. He relies on a judgment of the Supreme Court in the Case of Sanjay Bansal and another Versus Jawajarla Vats and others reported in 2008 CRI.L.J. 428. That was a case where at the instance of one party to lis High Court passed an order directing the police agency to reinvestigate the matter. Factual 3 matrix in the said case was/were different. In my view the reliance placed by learned counsel for the petitioner on the said judgment is misplaced. The learned Magistrate before whom the final report or charge-sheet is submitted is required to go through the materials collected by the investigating agency and after affording an opportunity of hearing to the informant may take a view based on materials on record. Bare perusal of the impugned order reflects that no such consideration of the materials available in the case diary was made as the Magistrate relied on the submission of the State Counsel assisting the court that since the protest cum complaint petition has been filed on behalf of the informant (O.P. No. 2) the matter may be made over for inquiry in terms of Section 192 of the code. For these reasons, I am not inclined to interfere with the impugned order. This application stands dismissed. Devendra/ ( K.K. Mandal, J.)