IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12476 of 2009 RAMDEO ROY, son of Late Adhik Lal Roy, resident of village – Dhrubganj, P.S. – Kharik, District – Bhagalpur, at present – Department of PHED, Combind Building, Bhagalpur. --------------- Petitioner. Versus 1. THE STATE OF BIHAR 2. Mahanth Kumar Ram, son of late Govind Das, resident of village – Atharia, P.S. – Kharik, District – Bhagalpur. ------------ Opposite Parties. For the petitioner : Mr. Pramod Kumar Singh, Adv. Mr. Binod Kumar No.2, Adv. For the Opp. Party : Mr. Rajiv Ranjan Singh, Adv. For the State : Mr. Damodar Prasad Tiwary, APP. ------- 03. 01.10.2010 Heard learned counsel for the petitioner, learned counsel for the opposite party no.2 and learned Additional Public Prosecutor for the State. Since all the parties to the proceeding are in attendance, with their consent the matter is being disposed of at the stage of admission itself. This is an application under section 482 of the Criminal Procedure Code seeking quashing of the order dated 06.02.2009 passed in Criminal Revision No. 32/2009 by Sessions Judge, Bhagalpur, setting aside the order dated 14.01.2009 passed by the Chief Judicial Magistrate, Bhagalpur, dismissing the Complaint Case No. 748/2008. Admittedly, opposite party no.2 filed the complaint wherein during inquiry some witnesses were examined and the court below also directed the police authorities to examine and report and police submitted the report against the complainant. After obtaining statement of some persons on affidavit including - 2 - the witnesses already examined before the Inquiring Magistrate, and on consideration all such materials, the court below dismissed the complaint giving rise to criminal revision no. 32/2009, which was dismissed by learned Sessions Judge, Bhagalpur, wherein he has apart from others taken one ground that petitioner accused participated in the inquiry which he could not have. There is no dispute that the petitioner did not appear before the court below or participated in inquiry before it and learned counsel for the petitioner on the basis of decisions of Apex Court in a case Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar and another reported in AIR 1960 SC 1113; which has been further followed in subsequent decision of the Apex Court in a case Pramatha Nath Talukdar v. Saroj Ranjan Sarkar reported in AIR 1962 SC 876; that the Chief Judicial Magistrate, Bhagalpur, acting on the report submitted by the police committed no wrong. No doubt, if the Inquiring Magistrate has called for any report, he is to consider the same before arriving at any conclusion to be satisfied whether any prima facie case is made out against the accused or not, but, at the same time, the law does not permit and Inquiring Magistrate to consider statement of the persons on affidavit especially when they have already deposed before the court contrary to the averments made in the affidavit, but in the instant case as it appears, the court below in - 3 - spite of noticing that report of the investigating officer contains statements of the witnesses on affidavit who has already appeared as witness in the court, dismissed the complaint. Thus, at this stage, in find that Revisional Court has committed no error in law while remitting the matter for further inquiry before the Chief Judicial Magistrate, Bhagalpur. Accordingly, this application stands dismissed. Rajeev/ (Akhilesh Chandra, J.)