IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9592 of 2007 SHANKAR SINGH, S/o Ram Raksha Singh, R/o Ekarha, P.S. Chewara, District Sheikhpura ………… Petitioner Versus 1. THE STATE OF BIHAR 2. Tanik Singh, S/o Chilangi Singh 3. Sri Janardan Singh, S/o Chilangi Singh 4. Sri Krishnanandan Singh 5. Sri Vijay Singh Both sons of Sri Tanik Singh 6. Sri Mirtunjay Singh 7. Sri Shushan Kumar Singh 8. Soni Kumar, Son of Uma Kant Singh All residents of village Ekarha, P.S. Chowara, district Sheikhpura Opp. Parties ----------- For the petitioner : Mr. Sanjeev Ranjan, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. Nos. 2 to 8 : M/s Ajay Kr. Thakur & Imtiaz Ahmad, Advocates -------- O R D E R The informant of Ariari P.S. Case No. 131 of 2002 and Ariari P.S. Case No. 67 of 2004 has preferred this application for quashing of the order dated 11.12.2006 passed in Cr. Revision No. 78 of 2005 by Sri Vijai Kant Mishra, the erstwhile Presiding Judge, Fast Track Court No. V, Sheikhpura, whereby he has set aside the order dated 1.3.2005 passed in Ariari P.S. Case No. 67 of 2004 by the learned Addl. Chief Judicial Magistrate, Sheikhpura, taking cognizance of offence under section 307 and other allied sections of the Penal Code against O.P. Nos. 2 to 8 herein. It appears that the petitioner herein had initially given his fardbeyan on 22.7.2002 at 8 P.M. alleging commission of offences under section 324 and 307/34 IPC as also section 27 of the Arms Act - 2 - in course of an occurrence which took place earlier at around 6 P.M. wherein he named Sushant Singh, Nawlesh Singh and an unknown other as the culprits and on the basis thereof Ariari (Chewara) P.S. Case No. 131 of 2002 was registered under the aforesaid sections. The police after due investigation submitted a chargesheet and cognizance was taken by the learned Chief Judicial Magistrate who issued summons for appearance of the accused and the same is pending for trial. However, thereafter the petitioner herein appears to have filed a complaint in respect of the same occurrence being Complaint Case No. 363 of 2004 naming 7 persons including O.P. No. 7 which on being transmitted to the concerned P.S., Ariari P.S. Case No. 67 of 2004 was registered under sections 341, 324 and 307 IPC as also section 27 of the Arms Act and after due investigation submitted a final form finding the case a mistake of fact since for the same occurrence a case being Ariari P.S. Case No. 131 of 2002 had already been registered. However, the learned Magistrate differing with the police report and on perusal of the materials available in the case diary took cognizance by order dated 1.3.2005 and issued summons to all the 7 accused, including Sushant Singh, who was already facing prosecution for the same offence in connection with Ariari P.S. Case No. 131 of 2002. Aggrieved thereby the petitioners preferred Cr. Revision No. 78 of 2005 before the Sessions Court which was disposed of by the impugned order dated 11.12.2006 allowing the revision and setting aside order dated 1.3.2005 passed by the learned Magistrate in Ariari - 3 - P.S. Case No. 67 of 2004 taking cognizance. The impugned order of the Revisional Court has been assailed by the learned counsel for the petitioner, who is the informant of both the Ariari P.S. cases, primarily on the ground that the learned Revisional Court had erred in setting aside the order of cognizance solely on the ground that there cannot be two first information reports in respect of the same occurrence remiss of the fact that both the cases ought to have been amalgamated together. The reason assigned for filing the compliant was that the alleged fardbeyan purported to have been given by him which formed the basis of Ariari (Chewara) P.S. Case No. 131 of 2002 was a false and concocted one which had never been given by him and had been the creation of the A.S.I who is claimed to have recorded his fardbeyan and after his release from the PMCH after full recovery from his injuries sustained at the occurrence, he proceeded to file the complaint where he clearly named the culprits who has made the murderous attack on him and had prayed for the same to be sent to the police station which the learned Magistrate had rightly accepted and on the basis thereof Ariari P.S. Case No. 67 of 2004 was recorded. Admittedly from a perusal of the complaint petition which is a part of the FIR of Ariari P.S. Case No. 67 of 2004 it appears that he had clearly mentioned about the registration of Ariari P.S. Case No. 131 of 2002. When the matter was placed before the learned Magistrate, he appears to have mechanically accepted the prayer made therein of sending the compliant to the concerned police station - 4 - without applying his judicial mind to the matter. The law on this issue is incorporated in section 210 Cr.P.C. and leaves no scope for dispute. The section clearly states that in a case instituted otherwise than on a police report i.e. a complaint case, if the Magistrate is made aware that an investigation by the police is in progress in relation to the offence which is also the subject matter of the complaint case, the Magistrate is required to stay the proceeding of the complaint case and call for a report on the matter from the police officer conducting the investigation. However, the Magistrate being aware of the investigation in Ariari P.S. Case No. 131 of 2002 did not follow the procedure laid down under section 210(1) Cr.P.C. and instead proceeded to meekly accede to the prayer of the complainant / informant to send the complaint petition to the police, and after police had submitted the final report disclosing that charge sheet had already been submitted in respect of the same offences and there was no requirement for taking further action, the Magistrate apparently misdirected himself in differing from the police report and taking cognizance. In this respect the Revisional Court was fully justified in setting aside the order. If the petitioner / informant did have any grievance of the charge sheet not including the names of all the accused persons who, according to him, had assaulted him the remedy lay before him to summon them under section 319 Cr.P.C. . To that extent the Revisional Court was fully justified in setting aside the order of the learned Magistrate as the same person - 5 - could not be tried twice for the same offence. In the facts and circumstances of the case I find no merit in this application which is accordingly dismissed. Patna High Court, Patna. Dated : The 23rd of April, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)