IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20813 of 2010 GIRIJA CHAUBEY, SON OF LATE BISHWANATH CHAUBEY, RESIDENT OF VILLAGE – BAHERA, POLICE STATION KUDRA, DISTT. KAIMUR (BHABHUA) -------- PETITIONER Versus 1. THE STATE OF BIHAR 2. BRAJESH KUMAR PASWAN, SON OF LATE BABAN PASWAN, RESIDENT OF VILLAGE – AMIRTHA, P.S. KUDRA, DISTRICT KAIMUR (BHABHUA) ----OPPOSITE PARTIES. ----------- 2. 03.03.2011 Heard the parties. The petitioner has sought quashing of the order dated 28.4.2010 passed by the Chief Judicial Magistrate, Bhabhua, in Kudra P.S. Case No. 66 of 2007 by which disagreeing with the final report, Magistrate has taken cognizance under Sections 302 and 120B/34 of the Indian Penal Code. It has been submitted that even though there is an oral dying declaration wherein the petitioner has been named, contained in the First Information Report, but subsequently during investigation, it transpired that the deceased was not in a position to have given the dying declaration nor did the witnesses support the factum of the oral dying declaration and, therefore, final report was submitted in this regard. Without any application of mind, the Magistrate seems to have taken cognizance in the matter. In my view, since the petitioner was named in the First Information Report by way of oral dying declaration, 2 the rest of the material could only be adjudicated at the stage of trial. In view of such, the application is dismissed. S.Ali ( Anjana Prakash, J.)