IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.50966 of 2007 1. ABDHESH SINGH Son of late Satya Narain Singh, 2. Karu Singh @ Ramanand Singh son of late Ramkewal Singh, Both resident of village Ranghatta, P.S. Katoria, District Banka. . . . . . Petitioners. Versus 1. THE STATE OF BIHAR 2. Rajendra Barnwal, S/o Balbhadra Barnwal, R/v Karjhaunsa Moditola, P.S. Katoria, Distt.- Banka. . . . . . Opposite parties. ----------- 3/ 19.01.2010 Heard learned counsel for the petitioners and the State. The petitioners have prayed for setting aside the order dated 14.08.2007 passed by Chief Judicial Magistrate, Banka in G.R. Case No. 1025 of 2003 being Katoria P.S. case no. 158 of 2003. The case was initially instituted under Sections 147, 148, 149, 341, 323, 325, 380, 376 and 504 of the Indian Penal Code. The police after investigation submitted charge sheet only under Section 147, 341, 323 and 504 of the Indian Penal Code. Learned counsel has assailed the impugned order taking cognizance and summoning the petitioners to face trial on two grounds, firstly; the Magistrate could not defer with the opinion of the police and secondly; the Magistrate has not given even a prima facie reason for deferring with the police opinion. So far as, first contention of the petitioners that the Magistrate does not have any power to defer with the opinion of the police is without any substance, and the same is rejected. However, there is substance in the second submission of the petitioners. The magistrate ought to have recorded prima facie reasons for deferring with the police opinion. The impugned order does not reflect any ground for deferring with the police opinion. In the circumstances, this application is allowed and the - 2 - impugned order dated 14.08.2007 passed in G.R. Case No. 1025 of 2003, arising out of Katoria P.S. case no. 158 of 2003 is set aside and the matter is remitted back to the Magistrate to proceed in accordance with law. Let the order be communicated to the court below (Chief Judicial Magistrate, Banka in G.R. Case No. 1025 of 2003 being Katoria P.S. case no. 158 of 2003) through FAX at the cost of the petitioners. Uday/ (Samarendra Pratap Singh, J.)