IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42518 of 2007 1. Arvind Kumar son of Mahendra Yadav 2. Mahendra Yadav son of Jitan Yadav 3. Dharmendra Yadav, son of Mahendra Yadav All residents of village Nauva Kura, P.S. Jhajha, Dist. Jamui --- Petitioners. Versus 1. The State of Bihar 2. Bindeshwari Yadav, son of Sito Yadav R/o vill. Dumarkola, P.S. Khaira, Dist. Jamui. --- Opp.Parties. For the Petitioners : Mr. Brajesh Sahay, Advocate. For the O.P.No.2 : Mr. Prakash Mahto, Advocate. For the State : Mr. Jharkhandi Upadhyay, APP ----------- 04 18.08.2010 Petitioners are aggrieved by order dated 23.08.2004, passed by learned Judicial Magistrate Ist Class, Jamui, in G.R. case no. 452 of 2002. They also assail the order dated 18.5.2007 passed by the learned Additional Sessions Judge, Fast Track Court No. III, Jamui, whereby the revision preferred against the order dated 23.08.2004, passed by Judicial Magistrate has been affirmed. An F.I.R. was lodged by the father of the victim alleging therein that on 12.05.2002 his daughter was married to petitioner no.1. On 13.05.2002 she went to her sasural. On 14.05.2002 she returned back to her Naihar as she was tortured on account of non fulfillment of the dowry and accordingly on 16.05.2002 the F.I.R. was lodged. The matter was investigated whereafter it was found that the case is mistake of fact. In other words, the Investigating Officer did not find sufficient materials to send the accuseds up for trial. It appears a protest petition was already filed on behalf of the informant/ opposite party no.2. 2 Learned Magistrate passed the following order on 23.08.2004 “Informant is represented. Perused the protest petition as well as the F.I.R. & case diary and find sufficient substance to proceed with the case. Accordingly cognizance of the offences u/s 498(A)/34 I.P.C. taken against the accused persons named in the F.I.R.” Learned counsel for the petitioners while assailing the sustainability of the order submits that prior to the filing of the present case petitioner no.1, namely, Arbind Kumar had filed a complaint case being complaint case no. 351 ( c) of 2002 ,against a host of persons including the opposite party no.2 alleging therein that he was kidnapped and was forcibly married to the daughter of informant/opposite party no.2 against his will. It is submitted that the said matter is pending trial. Learned counsel further submits that a bare perusal of the order impugned would indicate complete non application of mind. If the Investigating Officer had not found sufficient material then how without referring to the specific portions of police papers attached with the final form/report, learned Magistrate has recorded his satisfaction about the sufficiency of materials to proceed with the case. It is, thus urged that the order is completely mechanical, and is fit to be interfered with and quashed. It is further stated that hybrid procedure adopted by the learned Magistrate in the present case is not permissible in law. It is submitted that it is not clear from the perusal of the impugned order whether the Magistrate has proceeded on the strength of the police report filed under Section 173(2) of the Code of Criminal Procedure or on the 3 strength of the complaint. It is next contended that two different and distinct procedures have been provided in the Code for proceeding in such matter. Secondly it is submitted that the present prosecution has been launched once it was found that a criminal case has already been filed by the petitioner no.1 on 15.5.2002 i.e. prior to the present F.I.R. against the informant/opposite party no.2 and his other family members. It is thus submitted that malicious prosecution should not be allowed to continue particularly when the said matter is pending trial where the evidence is to be laid by the complainant petitioner no.1. Learned counsel appearing on behalf of the opposite party no.2 submits that the case diary reveals more than sufficient evidence which would justify the order impugned. I have heard the submissions advanced on behalf of the parties and perused the materials on record. Learned Court in the impugned order has recorded that a protest petition had already been filed. The F.I.R. and case diary indicate sufficient material to proceed with the case. It is to be recorded here that the police did not find adequate material against them and they were not sent up for trial. Learned Magistrate was thus required to peruse the case diary and record its satisfaction with reference to the materials appearing therein about the presence of sufficient materials. This would have given credence to his order. Secondly, it appears that the learned Magistrate mixed up the two procedures. It is indicated therein that he perused the F.I.R. and the police paper filed along with the charge sheet as also the protest petition and 4 thereby came to the conclusion that a prima facie case has been made out. This approach of the Court is contrary to law. As about the second submission of learned counsel for the petitioners, it is to be seen from bare perusal of the F.I.R. that the victim lady (daughter of opposite party no.2) admittedly stayed for one day only at her sasural and the following day she returned back to her home and thereafter she never returned to her sasural. This has to be considered in the backdrop of the fact that prior to the present F.I.R. petitioner no.1 had already lodged a complaint against the informant /opposite party no.2 and others alleging therein that he was forcibly kidnapped and married to the daughter of opposite party no.2 against his will. It is admitted position that the said matter is pending trial. Taking all these facts into consideration, I am of the view that the present prosecution based on the order taking cognizance dated 23.08.2004 should not be allowed to continue. Consequently the application is allowed. The impugned order dated 23.08.2004, passed by Judicial Magistrate Ist Class, Jamui in G.R. case no. 452 of 2002, and order dated 18.5.2007 passed by Additional Sessions Judge ( Fast Track Court no. III), Jamui in Cr. Rev. no. 469 of 2004, are hereby quashed and set aside. This Court may, however, observe that it has already been held by the Apex Court that in such matter subsequent criminal proceeding can always be lodged on fresh facts/cause of action. Thus the present order shall not preclude the informant from lodging a fresh prosecution once the case filed by the petitioner 5 no.1 is decided and a fresh cause of action arise. The application is allowed in the aforesaid terms. Sym ( Kishore K. Mandal, J.)