IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30210 of 2006 1. JANKI SHARAN GUPTA, SON OF LATE SARYUG SHARAN GUPTA, RESIDENT OF VILLAGE YOGIPUR, P.S. GOPALPUR, DISTRICT-GOPALGANJ. 2. JANKI DEVI, WIFE OF JANKI SHARAN GUPTA. 3. INDU KUMARI DAUGHTER OF JANKI SHARAN GUPTA. 4. SHREE RAM GUPTA, SON OF JANKI SHARAN GUPTA. 5. JAI RAM GUPTA, SON OF JANKI SHARAN GUPTA. 6. HARE RAM GUPTA, SON OF JANKI SHARAN GUPTA. ALL RESIDENT OF VILLAGE-YOGIPUR, P.S. GOPALPUR, DISTRICT-GOPALGANJ. …………………………………………………………..PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. PALTAN BHAGAT, SON OF MAHESH BHAGAT, RESIDENT OF VILLAGE-CHAUHAN PATI, P.S. GOPALPUR, DISTRICT- GOPALGANJ. …………………………………………………OPPOSITE PARTIES. ----------- For the Petitioners : Mr. Harendra Prasad Singh, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : M/s. Jitendra Kumar Singh and Sanjay Kumar, Advocates. ------------- O R D E R All the six petitioners who have been arrayed as accused in Complaint Case No.292 of 2002 have prayed for the quashing of the order dated 23.3.2005 passed therein by Sri A.K. Sah, Judicial Magistrate, First Class, Gopalganj as also the order dated 17.1.2006 passed by the learned Presiding Judge, Fast Track Court No.II, Gopalganj, in Criminal Revision No.105 of 2005. It appears that one Paltan Bhagat, the complainant, impleaded herein as O.P. No.2, filed the aforesaid complaint on 13.2.2002 before - 2 - the learned Chief Judicial Magistrate, Gopalganj and the same having been transferred to the court of a Judicial Magistrate, First Class, Gopalganj, under Section 192(1) Cr.P.C. an inquiry under Section 202 Cr.P.C. was held by the transferee court who eventually dismissed the complaint under Section 203 Cr.P.C. vide order dated 19.5.2002/20.5.2002. The complainant appears to have moved the Sessions Court through Criminal Revision No.199 of 2002 which was allowed vide order dated 13.8.2003 setting aside the order dated 19.5.2002/10.5.2002 of the lower court and the case was remanded back for further inquiry and disposal in accordance with law. After remand of the case, Sri A.K. Sah, the then Judicial Magistrate, vide order dated 23.3.2005 passed the impugned order whereby on perusal of the materials on record and finding a prima facie case under Sections 323, 379, 427/34 I.P.C. to have been made out, directed for issuance of summons against the accused under Section 204 Cr.P.C. The submission advanced by the learned counsel for the petitioners is that the order of the Revisional Court as also the learned Magistrate was illegal, arbitrary and without any material available on record as also that the case was of a civil nature since it arose from a civil dispute between the petitioner no.1 and opposite party no.2 in respect of zerpesgi land measuring 4 kathas 10 dhoors appertaining to khata no.6, khesra no.330. It has further been submitted that the learned Magistrate had erred in law inasmuch as after the remand of the case vide order passed in Criminal Revision No.199 of 2002 he did not hold - 3 - any further inquiry under Section 202 Cr.P.C. as directed and took cognizance against the petitioners on whatever materials was already available on record I have perused the order dated 17.1.2006 passed by the learned Presiding Judge, Fast Track Court No.II, Gopalganj in Criminal Revision No.105 of 2005 and it appears therefrom that an inquiry was held and apart from the complainant being examined on S.A. two other witnesses were examined at the inquiry under Section 202 Cr.P.C. It is settled principal of law that the court below has to look into the material for purposes of issuance of summons at this stage and if he finds that prima facie allegations appear to be true, process has to be issued. However, the impugned order of the learned Magistrate dated 23.3.2005 does not indicate that in pursuance of the order dated 19.5.2002/20.5.2002 passed in Criminal Revision No.199 of 2002 he had held further inquiry into the matter as had been the direction of the learned Revisional Court and on the very materials available on record from before he has taken cognizance. Although O.P. No.2 has appeared by filing vakalatnama but no show cause/counter affidavit has been filed on his behalf. His learned counsel sought to support the two impugned orders. I have heard the parties and I am of the view that the learned Revisional Court had erred in passing the order dated 17.1.2006 in Criminal Revision No.105 of 2005. It appears that he was satisfied with the order dated 23.3.2005 being completely remiss of the fact that in the earlier Revision further inquiry had been ordered and without holding - 4 - further inquiry on the very materials upon which the Magistrate had dismissed the complaint under Section 203 Cr.P.C. on the earlier occasion he had taken cognizance on remand of the case to his court. In the result, this application is allowed and the matter is remitted back to the Revisional Court for fresh consideration of the matter and passing orders after hearing the concerned parties in accordance with law. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 3rd of March, 2009. Pradeep Srivastava/A.F.R.