IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54054 of 2007 1. Jawahar Singh, son of Ramadhin Singh. 2. Jagdish Singh, son of Ramdhin Singh. 3. Tribhuwan Singh, son of Late Haridwar Singh. 4. Sanjay Singh @ Sanjay Kumar Singh, son of Late Haridwar Singh. 5. Ramadhin Singh, son of Late Suraj Singh. All resident of village-Mokari, P.S.-Bhabua, District-Kaimur(Bhabua). ……..Petitioners Versus 1. The State Of Bihar 2. Harilal Singh, son of Ramadhin Singh Resident of village-Mokari, P.S.-Bhabua, District-Kaimur(Bhabua). ……..Opposite Parties ----------- 03. 02.04.2010 Heard learned counsel for the petitioners and learned counsel for the State. Petitioners have challenged the order dated 11.04.2007 passed in Miscellaneous Case No. 2 of 2007 whereby on the application of O.P. No. 2, learned Chief Judicial Magistrate, Kaimur at Bhabua directed the Office to treat the protest petition as complaint and take action in connection with Bhabua P.S. Case No. 299 of 2003. Perused the order dated 11.04.2007. It appears that Bhabua P.S. Case No. 299 of 2003 was registered under Sections 341, 324, 307/34 of the Indian Penal Code and 27 of the Arms Act against the five accused persons namely Haridwar Singh, Tribhuvan Singh, Sanjay Singh, Jawahir Singh and Jagdish Singh and in the said matter the protest petition was filed on 09.02.2004. 2 Subsequently charge sheet was submitted vide charge sheet No. 246 of 2006 on 18.08.2006 under Sections 324, 307 I.P.C. and 27 of the Arms Act only against Haridwar Singh which is contained in Annexure-4 to the present application. Consequently learned Chief Judicial Magistrate took cognizance vide order dated 18.12.2006 against Haridwar Singh under Sections 324, 307 I.P.C. and 27 of the Arms Act and transferred his case to the Court of another Magistrate whereas petitioners were discharged. But subsequently Haridwar Singh died. It is admitted fact that the order dated 18.12.2006 has not been challenged by the O.P. till date. Subsequently an application under Section 410 of the Cr. P.C. was filed on behalf of the informant claiming that the protest petitions of the petitioners were pending. Moreover informant has no option to make these petitioners as an accused because the powers under Section 319 Cr.P.C. can not be exercised since Haridwar Singh died as he was the only person who was charge sheeted and his case was directed to be committed to the Court of Sessions in such a situation learned Chief Judicial Magistrate exercised power under Section 410 of the Cr. P.C. and directed to treat the protest petition as a complaint and directed to take the evidence during inquiry. Section 410 of the Cr.P.C. reads as follows. 3 “Withdrawal of cases by Judicial Magistrates.-(1) Any Chief Judicial Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same. (2) Any Judicial Magistrate may recall any case made over by him under sub- section (2) of section 192 to any other Magistrate and may inquire into or try such case himself.” The prosecution under Section 410 Cr.P.C. stipulates that power has been given to the Chief Judicial Magistrates or the Magistrates of the First Class to recall or withdraw a case which is pending or has already been transferred under Section 192 of the Cr.P.C. which reads as follows. “Making over of cases to Magistrates.-(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. (2) Any Magistrate of the first 4 class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, an thereupon such Magistrate may hold the inquiry or trial.” But in the present case where the final form was accepted as far back as on 18.12.2006 and non sent up accused persons were discharge hence with their discharge the protest petition also was no more treated to be surviving in that regard. Hence, in view of the aforesaid proposition, by exercising power under Section 410 of the Cr.P.C., the learned Chief Judicial Magistrate has committed an error by directing to treat the protest petition as a complaint petition. It further appears from the impugned order that the case was directed to be committed to the Court of Sessions since the case was not lying before the Magistrate hence on this score also the Magistrate has no power to pass any such order under Section 410 Cr.P.C. as the case of sole accused was committed to the Court of Sessions much earlier. Learned C.J.M. has no power to recall or withdraw as at the relevant time no case was pending before 5 the magistrate as the pendency of the case before the magistrate is a precondition for exercise of the power under Section 410 Cr.P.C. This provision of the Cr.P.C. does not authorize a magistrate to recall a case for the purpose of recalling any earlier order passed by him which will amount to review which is not permissible as the order dated 18.12.2006 by which petitioners have been discharged has attained finality since it has never been challenged. From the impugned order it appears that it was contended on behalf of the informant that since informant side is handicapped in not getting summoned the petitioners under Section 319 Cr.P.C. due to death of sole chargesheeted accused hence the powers under Section 410 Cr.P.C. may be exercised. The power under Section 410 Cr.P.C. can not be exercised on the ground that the informant is handicapped in invoking the provisions of Section 319 Cr.P.C. due to the death of sole accused Haridwar Singh. In the aforesaid circumstances, I hold that the order of the learned Chief Judicial Magistrate, Kaimur at Bhabua is absolutely without jurisdiction and contrary to law as Section 410 Cr.P.C. can not be exercised for giving life to a dead protest petition and for reviving a case which is no more in existence. Hence the impugned order amounts to review is not permissible under Cr.P.C. In this circumstances, I quash the order dated 6 11.04.2007 passed by the learned Chief Judicial Magistrate, Kaimur at Bhabua in Miscellaneous Case No. 2 of 2007. The application stands allowed. Shageer (Dinesh Kumar Singh, J)