IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.32124 of 2009 1. SADAN PRASAD SINGH @ SADAN SINGH Son of Late Bhagwati Singh 2. Mukesh Kumar, son of Prithbiraj Singh 3. Rakesh Kumar @ Rakko, Son of Prithbiraj Singh All residents of village Fatehpur, P.S.-Nalanda, District- Nalanda. . . . . Petitioners. Versus THE STATE OF BIHAR with Cr. Misc. No.43997 of 2008 1. SADAN PRASAD SINGH @ SADAN SINGH Son of Late Bhagwati Singh 2. Mukesh Kumar, son of Prithbiraj Singh 3. Rakesh Kumar @ Rakko, Son of Prithbiraj Singh All residents of village Fatehpur, P.S.-Nalanda, District- Nalanda. . . . . Petitioners Versus THE STATE OF BIHAR with Cr. Misc. No.26738 of 2009 1. SADAN PRASAD SINGH @ SADAN SINGH Son of Late Bhagwati Singh 2. Mukesh Kumar, son of Prithbiraj Singh 3. Rakesh Kumar @ Rakko, Son of Prithbiraj Singh All residents of village Fatehpur, P.S.-Nalanda, District- Nalanda. . . . . Petitioners Versus THE STATE OF BIHAR & ANR For the Petitioners : M/s S.N. Chaudhary Amarnath Singh, Advs. For the State : Mr. Pramod Kr. Panday, A.P.P. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For the Informant : Mr. Vibhuti Ranjan Sonvadra, Adv. ----------- 4/ 20.05.2010 Since all these applications have arisen out of same case, they have been heard together and are being disposed of by this common order. In Cr. Misc. No. 26738 of 2009, the petitioners have prayed for quashing the order dated 27.08.2008, passed by learned Sessions Judge, Nalanda at Bihar Sharif in Cr. Revision No. 214 of 2008, arising out of Nalanda P.S. case no. 09 of 2007 (G.R. No. 1570 of - 2 - 2007), whereby revisional court has set aside the order accepting final form submitted in favour of these petitioners. In Cr. Misc. 43997 of 2008, the petitioners have prayed for quashing the order dated 27.09.2008, passed by Chief Judicial Magistrate, Nalanda at Bihar Sharif, whereby cognizance has been taken under Sections 302, 323/34 of the Indian Penal Code and Section 27 of the Arms Act, pursuant to remand order of Sessions Judge. In Cr. Misc. No. 26738 of 2008, the petitioners have challenged the revisional order passed by Sessions Judge remanding the case to the Magistrate afresh, on point of cognizance. The fact of the case in short is as follows. The informant Rabindra Prasad Azad @ Bibi Singh lodged the case under Section 302, 323/34 of the Indian Penal Code against the accused persons including the petitioners for murder of his brother Shailendra Singh. The police after investigation submitted charge- sheet against Mohan Singh @ Dhuri Singh and Suraj Singh @ Tinku Singh, whereas investigation against these three petitioners were kept pending. On 21.01.2007 cognizance has been taken against Mohan Singh @ Dhuri Singh and Suraj Singh @ Tinku Singh. However, the police after investigation submitted final form in favour of these petitioners and the learned Magistrate accepted the final form on 28.07.2008. The informant Rabindra Prasad Azad being aggrieved, filed a revision before the learned Sessions Judge, Nalanda being Cr. - 3 - Reivision No. 214 of 2008. The Revisional court by order dated 27.08.2008 remanded the matter and directed the learned magistrate for passing fresh order in accordance with law and also in the light of discussions made above in the aforesaid order. The order dated 27.08.2008 passed by learned Sessions Judge is challenged in Cr. Misc. No. 26738 of 2008. In view of order dated 27.08.2008 of Sessions Judge in revision, the learned Chief Judicial Magistrate, by order dated 27.09.2008 took cognizance against the petitioners, which is impugned order in Cr. Misc. No. 43997 of 2008. Heard learned counsel for the petitioners and the State as well as informant. I take up Cr. Misc. No. 26738 of 2008 first. The counsel for the petitioners submits that the impugned order dated 27.08.2008 of Sessions Court in Cr. Revision No. 214 of 2008 remanding the case to the learned Magistrate is bad in law, as the learned Sessions Judge, directed the Magistrate to pass order in the light of the discussions mate above in the order. Counsel for the informant submits that there is sufficient material for proceeding against the accused persons and as such learned revisional court rightly remanded the matter to the learned Magistrate. Having heard the counsel for the parties. I do not find any infirmity in the impugned order of the revisional court, as in his order, he has already observed that the learned Magistrate will adjudicate the - 4 - matter afresh in accordance with law, as such challenge to the impugned order dated 27.07.2008 in Cr. Misc. No.26738 of 2009 is dismissed. In Cr. Misc. No. 43997 of 2008, the petitioners have challenged the order dated 27.09.2008, passed by learned Chief Judicial Magistrate, taking cognizance under Section 302, 323/34 and Section 27 of the Arms Act. Learned counsel submits that it would appear from the impugned order that the Magistrate, in view of remand by learned Sessions Judge, has taken cognizance under Section 302, 323/34 and Section 27 of the Arms Act, without any application of his judicial mind and on the materials available on the record. Counsel for the informant submits that there are sufficient materials for proceeding against the petitioners. I find substance in the submission of the learned counsel for the petitioner. The impugned order of Chief Judicial Magistrate does not reflect any independent application of his mind on the facts of the case. It appears that he has merely taken cognizance in view of the remand order passed by the revisional court which is not sustainable in the eyes of law, as such the impugned order taking cognizance is set aside and the matter is remitted to the court below. In case, the Magistrate finds that there is sufficient material to proceed against the accused persons, it would be open to the Magistrate to take cognizance against such persons. It is well settled that a Magistrate can differ with final report submitted by police. This court makes it - 5 - clear that it this Court has not expressed any opinion on the merit of the case, whether there is sufficiency or insufficiency of materials to proceed against the accused. Learned Magistrate is directed to pass order on the point of cognizance within one month from the receipt / production of a copy of this order. In Cr. Misc. No. 32124 of 2009, petitioners have prayed for quashing the order dated 04.08.2009 passed by 1st Additional Sessions Judge, Nalanda at Bihar Sharif in S.T. No. 285 of 2009, arising out of Nalanda P.S. case no. 09 of 2007 under Section 302, 323/34 of the Indian Penal Code and Section 27 of the Arms Act, whereby petition filed under Section 227 of Cr.P.C. by the petitioners for their discharge has been rejected. As this Court has remanded the matter for fresh consideration in Cr. Misc. No. 43997 of 2008, on the point of cognizance, the impugned order rejecting the application of discharged filed by the petitioners is too set aside. In case, the learned Magistrate again takes cognizance against the petitioners under Section 302, 323/34 and Section 27 of the Arms Act, which are Sessions triable, it would be open for the trial court to proceed in accordance with law, after receipt of the case on commitment. Let this order be sent through FAX at the cost of the petitioners. Uday/ (Samarendra Pratap Singh, J.)