IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25455 of 2007 YUGAL KISHORE SHAHI Versus STATE OF BIHAR & ANR ----------- For the petitioner : M/S Hare Krishna Kumar, Sanjeev Kumar, and Ritesh Kumar Narain Singh, Advocates. For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party No.2: None. _________ O R D E R The sole accused of Complaint Case no.2548 of 2003 has prayed for the quashing of the order dated 19.2.2007 passed therein by Sri Sandeep Kumar, Judicial Magistrate, First Class, Hajipur, whereby and whereunder he has taken cognizance against the petitioner under Section-420 I.P.C. It may be stated at the very outset that although the complainant, impleaded as Opp.Party no.2 herein, was duly served with notice and in response thereto he had appeared by filing a Vakalatnama, yet curiously at the time of hearing of this application neither he nor his accredited counsel was present to contest this application. It appears that the complainant , one Ramdeo Das, claiming to be employed as a Nightguard with the Canegrowers Society and Sugarcane Sale-Purchase Union since 1971 filed the aforesaid complaint on 26.9.2003 inter alia alleging the commission of the offences under Sections-420, 120B, 466, 467, 468 I.P.C. as also Section 9 of the Prevention of Corruption Act at the hands of - 2 - the petitioner, who as Secretary of the Society , two months earlier had obtained his thumb impression upon 5-6 blank paper on the pretext of preparing vouchers for materials required for renovation of his residential house and on the strength thereof had fraudulently withdrawn a sum of Rs.17,000/- in his name. It is said that Bhagwanpur P.S.Case No.63 of 2003 had also been registered against the petitioner at the instance of the Union and in course of investigation thereof he had been questioned. It further appears that at the enquiry of the complaint case, apart from the statement of the complainant on S.A., three other witnesses were examined and the learned Magistrate on consideration thereof as also the contents of the case diary of Bhagwanpur P.S.Case No.63 of 2003 took cognizance. Several points have been raised by the learned counsel for the petitioner, all of which happen to be his defence, and can be looked into at the time of framing of charge or in the trial itself. The only point which can be considered here is whether the learned Magistrate had erred in looking into the case diary of Bhagwanpur P.S.Case no.63 of 2003 while taking cognizance in the complaint. The scope and object of an enquiry under Section 202 Cr.P.C. was considered by the Apex Court in the case of Vadilal Panchal-Vrs. Dattatraya Dulaji ( AIR 1960 SC 1113 ) wherein it was observed that it is for the purpose of ascertaining the truth or falsehood of the complaint ; that is , for ascertaining whether there is evidence in support of the complaint so as to justify the issue of - 3 - process and commencement of proceedings against the person concerned. The Section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage. Then again approving the decisions in Parmanand Brahmachari -Vrs. Emperor ( AIR 1930 Pat 30 ) , Radha Kishun Sao Vrs. S.K.Misra ( AIR 1949 Pat 36 ), Ram Kisto Sahu –Vrs. State of Bihar ( AIR 1952 Pat 125 ) and a few other decisions, the Apex Court in the case of Chandra Deo Singh –Vrs. Prokash Chandra Bose (AIR 1963 SC 1430 ) observed that no doubt , as stated in sub-section (1) of Section 202 itself , the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant. In the instant case the learned Magistrate while considering the materials gathered in course of the enquiry under Section 202 Cr.P.C. also chanced to look into the case diary of Bhagwanpur P.S. Case No.63 of 2003. He had only to consider the result of the inquiry. It was not open to him to peruse or consider the case diary as the investigation was not ordered by him and perusing or looking into the case diary would tantamount to looking into extraneous matters which is unwarranted and may have influenced - 4 - him in forming the opinion as he did and has therefore exceeded his jurisdiction. For the aforesaid reasons this application has to be allowed and the order impugned deserves to be quashed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 31st July, 2008 Nawal Kishore Singh/A.F.R.