IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36187 of 2006 RAMESH KUMAR @ RAMESH SINGH, SON OF SRI SUKHI SINGH, RESIDENT OF VILLAGE BASUCHAK SHAKHUNA, P.S. SARAIYA, DISTRICT-MUZAFFARPUR…………………………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. KISHORI SINGH, SON OF LATE BHAJAN SINGH, RESIDENT OF VILLAGE BASUCHAK SHAKHUNA, P.S. SARAIYA, DISTRICT- MUZAFFARPUR. ………………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Sanjay Kumar Tiwary and Dhirendra Singh, Advocates. For the State : Dr. Mayanand Jha, A.P.P. For O.P. No.2 : Mr. Ram Naresh Singh No.3, Advocate. --------------- O R D E R The petitioner, one of the four persons arrayed as accused in Complaint Case No.965 of 2003, has prayed for the quashing of the order dated 28.8.2003 passed therein by Sri Sakaldeo Rai, learned Judicial Magistrate, First Class, Muzaffarpur, whereby he has taken cognizance of offences under Sections 302/34, 201 and 120-B I.P.C. against all the named accused including the petitioner. The said complaint case was lodged by one Kishori Singh, impleaded herein as O.P. No.2, on 11.7.2003 against the four persons impleaded therein as accused on the allegation that consequent to the conspiracy hatched between them, the accused persons had caused the murder of his nephew, Mithilesh Kumar, in between 6.30 P.M. of 24.5.2003 and 7.45 A.M. of 25.5.2003 tentatively. - 2 - It appears that for that very incident, the self –same complainant, Kishori Singh, about a month and half before had given his fardbeyan before the police at about 6.30 P.M. on 25.5.2003 wherein he had not revealed any names of suspects and on the basis thereof Saraiya P.S. Case No.95 of 2003 dated 25.5.2003 was registered against unknown under Sections 302/120-B I.P.C. and 27 of the Arms Act. The only difference between the two was that in the complaint he had specifically named the accused amongst whom the petitioner herein apart from being a co-villager was also a witness to the seizure list. The grievance of the petitioner is that notwithstanding the complainant having made a specific mention in his complaint petition of the fact of the registration of the police case founded on his fardbeyan, the learned Magistrate instead of applying the provisions of Section 210 Cr.P.C. and staying the complaint case and calling for a report from the police , which under the procedural law he was duty bound to adhere to, however, proceeded to carry on with the procedure provided for complaint cases and having held on enquiry under Section 202 Cr.P.C. and took cognizance by the impugned order even ass the investigation in the police case was going on. Section 210 Cr.P.C. provides that when a complaint is filed and it appears to the Magistrate during the inquiry that the police is also investigating the same offence, he shall stay the complaint case and call for a report from the police in the matter. The object of the section is to secure that private complaints do not interfere with the - 3 - course of justice. The intention appears to be a deterent to unscrupulous persons, who, notwithstanding the pendency of police investigation, file a complaint and quickly get an order of acquittal by collusion or otherwise thereby rendering infructuous the police investigation leading to the miscarriage of justice. The intention may also be to prevent unscrupulous persons from falsely implicating innocent persons by way of after thought only because they happen to be their rivals, political or otherwise or because there is inimical relationship inter se. The learned A.P.P. as also the learned counsel for the informant sought to justify the impugned order by stating that since the police investigation was not being carried out in a fair manner and the police was openly siding and colluding with the accused it became incumbent upon the informant to file the complaint case in order to seek justice. There is another aspect of the matter. It appears from perusal of the impugned order that the learned Magistrate for the purposes of taking cognizance has perused and placed reliance on the F.I.R., fardbeyan and post-mortem report, photocopies whereof had been submitted in court, apart from the materials which had come on record in course of the inquiry under Section 202 Cr.P.C. The law by now is well established that in an inquiry under Section 202 Cr.P.C., the Magistrate has to satisfy himself that there is sufficient ground for proceeding against the accused since the very object of such inquiry is to ascertain whether the allegations made in - 4 - the complaint are intrinsically true, and to come to this conclusion, the Magistrate is entitled to consider the evidence taken by him or recorded by him at the inquiry under Section 202. He is not entitled to look into any other material besides this. Gainful reference in this connection may be placed on the decision of Chandradeo Vs. Prokash Chandra (A.I.R. 1963 SC 1430). Applying the principles laid above in respect of the provisions of Sections 210 ands 202 Cr.P.C., I am not in a position to reconcile with the impugned order which by necessity and in the interest of justice is required to be set aside as a whole and will also be applicable to those accused who have not been a party to this application. Accordingly, this application is allowed and the impugned order taking cognizance is hereby set aside. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 10th of April, 2009. Pradeep Srivastava/A.F.R.