IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4755 of 2001 with Cr.Misc. No.5860 of 2001 … Cr. Misc. No. 4755/2001: (1) Dhotai Mandal, son of Late M. Mandal, (2) Boka Mandal, son of Dhotai Mandal, (3) Ramanand Mandal @ Manna Mandal, son of Budhan Mandal, (4) Sundar Lal Mandal, son of Manglu Mandal, (5) Dip Chand Mandal, son of Late Bisan Mandal, (6) Bodhwa Mandal, son of Sundar Mandal, (7) Sadanand Mandal, son of Sharvan Mandal, (8) Dharmnath Jha, son of Late Labkant Jha, (9) Lakshmi Kant Jha, son of Bagare Jha, (10) Wife of Boka Mandal, all of village Phulsara, PS Palasi, District Araria – petitioners. Vs (1) The State of Bihar, (2) Fulanand Mandal @ Sakru Mandal, son of Late Kare Mandal, village Fulsara, PS Palasi, District Araria – Opp. Parties. … For the petitioners : Mr. Ajay Kumar Thakur, Sr. Advocate and Mr. Ravi Ranjan, Advocate. For the State : Mr. Amarendra Prasad, A.P.P. For the informant : Mr. Sarangdhar Jha, Advocate. … Cr. Misc. No. 5860/2001: Bhawendra Choudhary, son of Late Chandra Nand Choudhary, resident of Kala Balua, PS Ramganj, at present Araria, District Araria – Petitioner. Vs. (1) The State of Bihar, (2) Phulanand Mandal @ Sakru Mandal, son of Late Kare Mandal, village Phulsara, PS Palasi, District Araria – Opp. Parties. … For the petitioner : Mr. Kamal Nayan Choubey, Sr. Advocate, Mr. Ambuj Nayan Choubey, Mr. Siddharth Harsh, Mr. Gopal Swaroop Dubey and Ms. Ritu Priyadarshini, Advocates. For the State : Mr. Raj Ballabh Singh, A.P.P. … P R E S E N T HON’ BLE JUSTICE SMT. SHEEMA ALI KHAN 6 S.A.Khan,J. Shocking facts have come to the notice of this court 2 when these two quashing applications were filed. An FIR was instituted on 12.3.2000 for an occurrence which took place on 10.3.2000 in which the wife of Boka Mandal was killed by the named accused persons in the F.I.R. On investigation the police submitted a final report stating therein that the case has been instituted as a mistake of fact on the ground that Dr. B. Choudhary (petitioner of Cr. Misc. No. 5860 of 2001) has reported that the lady died during the course of treatment. Apparently on 22.8.2000 the informant filed a petition in court stating that the case had been filed due to some misunderstanding of facts. The final report was placed before the court on 30.6.2000 and subsequently by order, dated 22/24.8.2000 the Chief Judicial Magistrate, Araria accepted the final report. Subsequently the Chief Judicial Magistrate thought better of his action and it would appear that the records were again placed before him and by order, dated 22.12.2000 he recalled the order accepting the final form on the ground that the informant was not issued notice before the acceptance of the final form. He has observed in the order that it is against the principles of natural justice and thereby has reviewed the order and thereafter taken cognizance of the offence under section 302 of the Penal Code by order, dated 17.1.2001. The order of review and the subsequent order taking cognizance is under challenge in both these applications by the ten petitioners and Bhawendra Choudhary. The first submission on behalf of the petitioners in both these cases is that having once accepted the final form, the 3 Chief Judicial Magistrate did not have the power to review his own order and any order passed subsequently to the order, dated 23/24.8.2000 would also be without jurisdiction. For the purpose of the submission aforesaid, learned counsel for the petitioners refers to the judgment in the case of State of Kerala vs. M.M. Manikantan Nair, AIR 2001 SC 2145 wherein the apex court has held that even the High court does not have the power to review its own order. It has also been argued on behalf of the petitioners that there was no occasion for the Chief Judicial Magistrate to reopen the matter and call for the records of the case once the matter has already been disposed of. It is not a case where the informant or for that matter the police officer conducting the enquiry had filed an application for review of the order. In any event it would have been open for any one to challenge the order in a higher court on any legal ground. Having given my anxious consideration to the proposition raised on behalf of the petitioners as well as the facts which have emerged and on perusal of the records and the case diary it would prima facie indicate that there are several materials to support the factum of the occurrence. One B. Choudhary has been examined at paragraph 21 of the case diary by the Investigating Officer. It has been stated that he was posted in the hospital and he had treated Indira Devi who had died during the treatment. On the basis of the solitary statement of Dr. B. Choudhary, final report has been submitted. Counsel appearing on behalf of petitioner B. 4 Choudhary submits that he is not a Government employee and that he works privately as a doctor and, therefore, the statement given by the Officer Incharge that B. Choudhary has treated the deceased in the hospital appears to be incorrect. However, this court cannot come to a definite finding on the basis of such a submission. However, in the facts aforesaid I have no option but to quash the order, dated 22.12.2000 and the consequential order, dated 17.1.2001. Nevertheless this court under section 482 of the Cr.P.C. has the power to consider that the manner in which this case has proceeded and the orders passed by the court below are, to say the least, suspicious. I find that in fact I cannot ignore the evidence in the case diary and, therefore, direct that the court below should issue notice to both the parties and after hearing them pass a fresh order on the basis of the materials before him. If the court below finds that there is sufficient material in the case diary, then appropriate orders would be passed to that effect. These applications are allowed with the aforesaid directions. Office is directed to send the records of Palasi PS Case No. 33/2000, G.R. No. 407/2000 to the court of the Chief Judicial Magistrate, Araria for appropriate action. Patna High Court, January 21, 2011. N.A.F.R. / haque. ( Sheema Ali Khan, J.)