IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3210 of 2007 RAM EKBAL SINGH , SON OF LATE CHHABILA SINGH 2. MAHANTH RAMJIWAS DAS CHELA OF LATE MAHANTH SIYA RAM DAS, RESIDENT OF TEZPURWA RAM JANKI MATH, P.S.MARHOURAH,DISTT.Saran( (Chapra) 3. SANTOSH KUMAR SINGH, SON OF RAM EKBAL SINGH 4. MOHAN SAH SON OF LATE NAGINA SAH 5. JAIRAM SAH SON OF MOHAN SAH 6. SOHAN SAH SON OF LATE NAGINA SAH ALL PETITIONERS 1 AND 3 TO 6 ARE RESIDENTS OF VILLAGE- TEZPURWA, P.S. MARHOWRAH, DISTRICT- SARAN (CHAPRA) ................................................................... PETITIONERS Versus 1. THE STATE OF BIHAR 2. HIRAMANI DEVI ( INFORMANT) WIFE OF GAURISHANKAR SAH, RESIDENT OF VILLAGE- TEZPURWA TOLE- D HAHPER, P.S. MARHOWRAH, DISTT. SARAN ( CHAPRA).. OPP. PARTIES. ------------- 6 5-2-2010 Heard learned counsel for the petitioners and learned counsel for the State. By the impugned order dated 21-9-2006 the learned Chief Judicial Magistrate, Saran at Chhapra has taken cognizance in Marhowrah P.S. Case No. 106 of 2002 against three charge-sheeted persons who are not the petitioners as well as against the six petitioners, who according to police, were found innocent. On behalf of these six petitioners cognizance order or their summoning for appearance in the court below have been challenged mainly on the ground that the learned Chief Judicial Magistrate failed to consider several important relevant materials on the record including a statement of the informant and other close relations of the deceased under section 164 of the Code of Criminal Procedure as well as subsequent complaint case by the informant bearing Complaint Case No. C. 1268 of 2002. It was submitted that soon after the - 2 - informant learnt that after obtaining her thumb impression an incorrect F.I.R. has been lodged implicating these six petitioners also, she raised a grievance before the Superintendent of Police and thereafter on his order, the informant and her family members were examined under section 164 of the Cr.P.C. in which they named only three charge sheeted accused persons and not these petitioners as the culprits. It was pointed out that even in the complaint petition filed later on, the informant has named only the three charge sheeted accused as the culprits. On going through the impugned order of cognizance it is found that the learned Chief Judicial Magistrate, Saran at Chapra has adopted a mechanical approach and has not even referred to the aforesaid facts including the statements of the informant and material witnesses, the close relations of the deceased recorded under section 164 of the Cr.P.C. In that view of the matter the impugned order of cognizance in so far as it relates to these six persons, is set aside and the matter is remitted back to the learned Chief Judicial Magistrate for considering all the relevant materials for passing a fresh order as per law after deciding whether cognizance should be taken against these petitioners or not. This application is allowed to the aforesaid extent. ( Shiva Kirti Singh,J) Naresh