IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37455 of 2007 SAMBHU PRASAD SHRIVASTAVA, SON OF BAIJNATH PRASAD SRIVASTAVA, RESIDENT OF VILLAGE-CHILMANIA, POLICE STATION-BANJARIA (TURKOULIA), DISTRICT- EAST CHAMPARAN ----- PETITIONER Versus 1. THE STATE OF BIHAR 2. BISHWANATH SAHNI, SON OF LATE ASHARFEE SAHNI, RESIDENT OF VILLAGE-CHILMAINI, POLICE STATION- BANGARIA (TURKOULIA), DISTRICT-EAST CHAMPARAN ---- OPP.PARTIES ----------- 3 02-12-2008 Heard Mr. D.K.Tandon, the learned counsel for the petitioner as also Dr. Maya Nand Jha, the learned A.P.P. for the State. The grievance of the petitioner is against the order dated 15.5.2007 passed by Sri B.B.Pathak, the learned Sessions Judge, East Champaran at Motihari in Cr.Rev.No.84 of 2007, whereby in view of the order passed in Cr.Revision No.101/2001 he has disposed of the said Revision application on the similar grounds. Briefly stated the facts in issue is that following police investigation in Turkoulia ( Banjaria ) P.S.Case No.60 of 2004, the police submitted chargesheet against three of the accused and did not send up this petitioner. However, the learned Magistrate taking cognizance differed from the police report and took cognizance as also against the petitioner by order dated 20.12.2006. Whether , the learned Magistrate taking cognizance by differing from the final form submitted by the police and taking cognizance against persons not sent up is no more res integra in view of the categorical decisions of the Apex Court in the cases of Raghubansh - 2 - Dubey Vrs. State ( AIR 1967 SC,1167) and Hareram Satpathi- Vrs.Tikaram Agrawal ( AIR 1978 SC 1568 ). The latest Judgment on the issue is of India Carat (P) Ltd.-Vrs. State of Karnataka, reported in (1989) 2 SCC, 132. The learned counsel for the petitioner has placed reliance on the case of Kishori Singh & Ors-Vrs. State of Bihar, reported in (2006)1 SCC 275 which in turn had relied on the decision of Raj Kishore Prasad-Vrs. State of Bihar , reported in (1996)4 SCC 495 and Ranjit Singh –Vrs. State of Punjab , reported in (1988) 7 SCC 149. It appears from perusal of the Judgments cited by the learned counsel for the petitioner that although their Lordships have noticed the case of India Carat ( P ) Ltd ( Supra),but their Lordships have not expressed any view about the said Judgment. It also appears that the Judgments of Raghubansh Dubey ( Supra) and Hareram Satpathi (Supra) were not brought to the notice of their Lordships hearing Kishori Singh’s case ( Supra). It is by now well-settled by the Apex Court that when there is difference between two Judgments of co-equal benches and the earlier Judgment has not been cited or noticed by the Bench pronouncing the second Judgment, the earlier Judgment shall prevail. In that view of the matter, I find no merit in this application, which is accordingly dismissed. ( Abhijit Sinha, J ) NKS/-