IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36978 of 2007 1. SAM DEVI W/o Vishundeo Ram 2. Devendra Ram S/o Vishundeo Ram 3. Munna Ram S/o Vishundeo Ram 4. Gopal Ram S/o Vishundeo Ram 5. Vishundeo Ram, S/o Ghutar Ram All r/o village Sona, P.S. Sona, District Jamui …. Petitioners Versus 1. STATE OF BIHAR 2. Ghutar Ram, S/o Late Shibu Ram, r/o village Sona, P.S. Sona, District Jamui … Opp. Parties ----------- For the petitioner : M/s Bhola Prasad, & Anirudh Kr. Sinha, Advocates For the State : Dr. Mayanand Jha, A.P.P. For O.P. : None …….. 5 28.11.2008 It appears from the report sent by the court below that O.P. No. 2 Ghutar Ram expired on 11.8.2007 and till today no steps have been taken for his substitution. From the impugned order dated 8.6.2007, it appears that the discharge petition filed by the complainant has been rejected only on the ground that the learned Chief Judicial Magistrate on submission of final form by the police had differed from the same and had taken cognizance of offences under sections 420, 120B, 468, 504 and 323 I.P.C. Apparently at the stage of hearing on a petition of discharge it is immaterial whether the cognizance has been taken on the basis of the charge sheet submitted by the police or on the basis of the Magistrate having differed from the final form submitted by the police or even on a cognizance being taken on a complaint petition - 2 - after holding an inquiry under section 202 Cr.P.C. The Magistrate while entertaining a petition for discharge is required to apply his independent mind irrespective of the fact that the cognizance has been taken by whatever means and thereafter to see whether there is sufficient grounds to proceed against the accused. For this the Court is required to consider the record of the case and the documents submitted therewith and also hearing the submissions of the accused and prosecution in this behalf. If there is no sufficient grounds for proceeding he would discharge the accused and where there is sufficient grounds to proceed against him he will free to frame charge. It is to be noted that at this stage the standard, test, proof of judgment which is needed for finding of a guilt or otherwise is not necessary for framing of charge and even a strong suspicion founded upon materials before the Magistrate may justify framing of charge. But in such a situation it is also to be noted that there must be an application of independent and judicial mind unaffected by the fact that the cognizance has been taken. Due regard being had to the analysis made above the matter is remitted back to the court below to give a fresh consideration on the petition of discharge filed by the petitioners. In the aforesaid observation this application is allowed and the order dated 8.6.2007 is hereby set aside. Spd/- (Abhijit Sinha, J.)