IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.17572 of 2006 GANESH RAI & ORS Versus STATE OF BIHAR AND ANOTHER ----------- 7. 4.8.2008. Heard the learned counsel for the petitioners as also the learned A.P.P. for the State. Although O.P. No.2 on being noticed had appeared by filing a vakalatnama yet none is present in court to contest this application on his behalf. The grievance of the petitioners is against the order dated 5.2.2006 passed by Sri S.K. Tripathi, Judicial Magistrate, First Class, Vaishali at Hajipur in Complaint Case No.C 2281 of 2004 whereby and whereunder he has taken cognizance against the petitioners of offences punishable under Section 304-B I.P.C. It appears that initially a written report was submitted by one Devdhari Rai, alleging commission of offences under Sections 304-B/498-A/34 I.P.C. at the hands of the accused persons and the same was transmitted to the concerned police station under Section 156(3) Cr.P.C. whereupon Vaishali(Belsar) P.S. Case No.89 of 2003 was registered. It further appears that the police after due investigation submitted a final form against the petitioners on 20.12.2003 and notice whereof was directed to issue to the informant. On 28.1.2004 the informant appeared in court and made a prayer for accepting the final form and to proceed with the protest petition. Accordingly, the protest petition was taken up as Complaint Case having been numbered as C 2281 of 2004. It appears that at the inquiry under Section 202 Cr.P.C. the - 2 - learned Magistrate recorded the statements of the complainant on S.A. and 8 witnesses produced by the complainant and thereafter having considered the same and having found a prima facie case to have been made out took cognizance against them. It is by now well settled by a four Judges’ Bench of the Apex Court in the case of Chandra Deo Vs. Prokash Chandra (AIR 1963 SC 1430) that since the object of an inquiry under Section 202 Cr.P.C. is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate has to satisfy himself that there is sufficient ground for proceeding. It was also held that in order to come to this conclusion he is entitled to consider the evidence taken by him or recorded in an inquiry under Section 202 Cr.P.C. and he is not entitled to rely upon any other material besides this and where there is prima facie evidence, even though an accused may have a plausable defence of his innocence , the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. Their Lordships in doing so approved the decisions of Patna High Court in the case of Parmanand Brahamchari Vs. Emperor(AIR 1930 Pat 30), Radha Kishun Sao Vs. S.K. Mishra(AIR 1949 Pat 36) and Ramkisto Sahu Vs. State of Bihar(AIR 1952 Pat 125) wherein it was held that the object of the inquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the inquiry has to do this only with reference to the intrinsic quality of the statements made before him at the inquiry, which would naturally mean the complaint itself, the statement on oath made - 3 - by the complainant and the statement made before him by persons examined at the instance of the complainant. He cannot look into the case diary or the final form all of which would be extraneous matters. This application is accordingly dismissed as being without merit. P.S. (Abhijit Sinha,J)