IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34835 of 2007 ANIL PASWAN Versus STATE OF BIHAR & ANR ----------- 4 20.11.2008 Heard Sri Shivendra Kumar Sinha, the learned counsel for the petitioner, Sri Jharkhandi Upadhaya, learned A.P.P. for the State and Sri Ramchandra Sahni, the learned counsel for O.P. No. 2. The petitioner who is one of the accused in Complaint Case No. 536 C of 2005 is aggrieved by and has prayed for the quashing of order dated 26.6.2007 passed therein by Sri Jivan Lall, Judicial Magistrate, 1st Class, Barh, whereby he has taken cognizance of offences under sections 498A and 494 I.P.C. It appears that Baby Devi, the wife of the petitioner, herein impleaded as O.P. No. 2, preferred the aforesaid complaint case against the petitioner and 8 others alleging commission of offences under sections 498A, 494, 323, 380 and 406 I.P.C. It appears after holding an inquiry under section 202 Cr.P.C. the learned Magistrate dismissed the complainant under section 203 Cr.P.C. on 15.2.2005 on a finding that the complainant had lodged the case after the period of limitation as provided under section 468 Cr.P.C. Aggrieved thereby the complainant preferred Cr. Revision No. 141 of 2006 before the Sessions Court and the 3rd Addl. Sessions Judge, Barh, by order dated 13.11.2006 set aside the order of the Magistrate dated 15.12.2005 on a finding that the offences under sections 498A being a continuous offence and 464 I.P.C. prescribing for a sentence of 7 years was not barred by limitation under section - 2 - 468 Cr.P.C. and the same does not apply in the facts and circumstances of the case . He also found that from the materials available on record a prima facie case for offence under sections 498A, 494, 380, 406 I.P.C. were made out against the accused and directed the learned Magistrate to reconsider the matter in the light of the observation made above and pass necessary orders taking into account the merit of the case and the probative value of the evidence available on record. The learned Magistrate on the case being remanded back to his court by the impugned order dated 26.6.2007 recorded the following. “Record produced for order. In the light of observation and direction of A.D.J.III dated 13.11.2006 prima facie case under sections 498A / 494 I.P.C. is made out against the accused no. 1 Anil Paswan only. No case is made out against the other persons. Complainant is directed to file requisites within 15 days. OC is directed to issue summons. Thereafter put up on 31.7.2007 for further proceedings.” It is strange that the learned Magistrate without recording further evidence or even dealing with the evidence that was available before him at the inquiry under section 202 Cr.P.C. took cognizance apparently on the directions of the revisional court whereas he was required to apply his own mind to the materials available on record. Such half - hazard orders taking cognizance cannot be sustained in law and is hereby set aside and the matter is remitted back to the learned Magistrate to proceed in accordance with law and pass orders - 3 - in the light of the observation made by the revisional court which means that the will apply his mind to the materials available before him in the inquiry under section 202 Cr.P.C. or hold further enquiry, and then pass orders in accordance with law. The application is accordingly allowed and the matter is remitted back to the learned Magistrate for doing the necessary. Spd/- (Abhijit Sinha, J.)