IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32981 of 2007 RAMESHWAR PRASAD YADAV Versus STATE OF BIHAR & ANR ----------- For the petitioner : Mr. R.B.S. Pahepuri, Adv., : Mr. Amitabh Bhardwaj, Adv., For the State : Mr. Gopesh Kumar, APP, 5. 14.5.2008. This application under Section 482 Cr.P.C. has been filed for quashing of the order dated 23.2.2004 passed by learned ACJM, Rosera in C. R. 16/04 thereby cognizance under Sections 302 and 120 B of the I.P.C. has been taken against the petitioner and others. Heard learned counsel for both the parties. It appears from the record and submission of learned counsel for the parties that Rosera P. S. Case No. 49 of 2003 was registered under Sections 302/34 I.P.C. against four persons namely, Gauri Khatik, Ram Briksha Khatik, Kanhaiya Khatik and Suresh Khatik on the basis of fardbeyan lodged by opposite party no. 2- Ramochit Jha for murder of his brother. Police investigated the case and ultimately submitted charge-sheet against named accused persons. However, opposite party no. 2 not being satisfied with investigation, filed several petitions dated 16.6.2003, 28.10.2003 and 7.11.2003. Petitions dated 28.10.2003 and 7.11.2003 were filed under Section 319 Cr.P.C. for summoning and taking cognizance also against this petitioner and six others as accomplice in commission of murder of Ram Bali Jha. Learned ACJM heard the parties on charge-sheet filed by police as well as on petitions filed under Section 319 Cr.P.C. Ultimately, vide order dated 20.11.2003 rejected the petitions filed under Section 319 Cr.P.C. for taking cognizance against the petitioner and six others and took 2 cognizance against four charge-sheeted accused persons. The order rejecting the petitions under Section 319 Cr.P.C. attained finality as neither opposite party no. 2 nor State moved against that order. The trial of aforesaid case arising out of Rosera P. S. Case No. 49 of 2003 is still pending. Surprisingly, being aggrieved by the rejection of petitions filed under Section 319 Cr.P.C. opposite party no. 2 filed a separate complaint case in question bearing no. 16 of 2004 against this petitioner and six others named in the petitions filed under Section 319 Cr.P.C. before the Court of ACJM. Against all the accused persons named in complaint case learned ACJM took cognizance under Section 302, 120 B I.P.C. and after enquiry under Section 202 Cr.P.C. issued summons against them. Learned counsel for the petitioner submitted that taking cognizance against the petitioner and others on the basis of subsequent complaint petition is illegal and bad in law. Since the trial of the case is still pending, the opposite party no. 2 has only remedy in the trial to add additional accused. No separate case can be filed for the same offence. Taking cognizance against the petitioner and others is out and out misuse of the process of the Court. It is further submitted that learned ACJM has taken cognizance without applying his judicial mind and the law applicable thereto. Considered the submission of learned counsel for the petitioner and perused the material available on the record. 3 I find no reason to differ from the submission of learned counsel for the petitioner. Learned court below has apparently committed grave illegality by taking cognizance against the petitioner as for the same offence trial is going on. The case is triable by the Court of Sessions. Therefore, Sessions Court alone is empowered to take cognizance against any additional accused under Section 193 read with Section 319 of Cr.P.C. Filing of separate complaint case for the same offence and taking cognizance against additional accused is out and out misuse of the process of the Court. Accordingly, this application is allowed and the impugned order of cognizance dated 23.2.2004 passed by ACJM, Rosera in C. R. 16/04 along with entire criminal proceedings arising out of Complaint Case No. 16 of 2004 is, hereby, quashed. kanchan (Ghanshyam Prasad, J.)