IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27935 of 2009 YUGAL KISHORE SINGH & ANR . Versus STATE OF BIHAR . ----------- For the Petitioners:- Mr. Ajay Kumar Thakur, Senior Advocate & Mr. Amir Alam, Advocate For the State:- Mr. Parmeshwar Mehta, A.P.P. 02 30.03.2010 Heard learned counsel for the petitioners and learned counsel for the State. The petitioners are aggrieved by the order dated 27.11.1996/2.11.2002 taking cognizance against the petitioners in Bangra P.S. Case No. 17 of 1990 passed by the Chief Judicial Magistrate, Vaishali at Hajipur as also the rejection of their application for recall of the order by an order dated 29.4.2009 and the consequent rejection of their Criminal Revision on 1.7.2009. An F.I.R. was lodged on 30.4.1990 under Section 302, 380/34 of the I.P.C. against 20-25 unknown persons. The Police submitted charge- sheet against certain persons, when the present two petitioners were not sent up for trial, they were then discharged on 5.2.1991. Learned counsel for the petitioners submit that thereafter the case remained pending before the Magistrate for years together, when no order- sheet was recorded after 27.7.1996 and suddenly 2 when the records were traced out on 2.11.2002 abruptly cognizance has been taken against the petitioners afresh without any reason/ discussion/consideration of the earlier order dated 5.2.1991. Cognizance has also been taken again against those with regard to whom cognizance had already been taken on 5.2.1991. He therefore submits that the fresh order of cognizance is completely mechanical, non-speaking in nature, without application of mind. The order dated 5.2.1991 has attained finality because none has questioned the same. Learned counsel for the State opposing the application submits that the impugned order warrants no interference and the application was fit to be dismissed. If the petitioners had been discharged on 5.2.1991, there was no occasion to take fresh cognizance against them except in accordance with law when the fresh order of cognizance required adequate consideration of what had procedure subsequently to justify fresh order of cognizance inter alia the earlier discharge in accordance with law even while this Court hold that the fresh order of cognizance 27.11.1996/2.11.2002, on the face of 3 it, in the nature of the order and the time log in between the two is not sustainable, this Court finds it different to simplicitor set it aside and allow this application and that shall result in affirmance by this Court of the order dated 5.2.1991. This Court has considered the submission of the petitioners with regard to the order dated 5.2.1991. The Court is satisfied that an order which attains finality inter parties is distinct from an order erroneous in law passed by the Court itself. If the order is erroneous in its very inception, failure to challenge the same shall not lend credited to it as the fault lies with the Court in procedures and the question of acceptance of the same by non- challenge does not arise. What was primarily the duty of the court cannot become the obligation of the informant. It was the duty of the Court while accepting the final report not sent up the petitioners for trial to issue notice to the informant. If the authority had needed for the present this court place reliance on a decision reported in 2009 (6) SCC 661 (CHITTARANJAN MIRDHA VERSUS DULAL GHOSH AND ANOTHER). In the result the order of cognizance dated 4 27.11.1996/2.11.2002 is set aside. The matter is remanded to the Court of the Magistrate to proceed afresh from the stage of submission of the final report insofar as the petitioners are concerned after issuance of notice to the informant and then pass a reasoned and speaking order in accordance with law. The Court is informed at the bar that commitment of the case is not yet been done and therefore compliance of this order shall not impose any difficulty in the progress of the trial. The application is allowed to the extent indicated with the directions as contained. The impugned order dated 27.11.1996/2.11.2002 is set aside only insofar as the petitioners are concerned. P.K. (Navin Sinha, J.)