CRIMINAL MISCELLANIOUS No.26730 OF 2006 ( In the matter of an application under Section 482 of the Code of Criminal Procedure ) * * * * * 1.MD. KAMARUDDIN AHMED, Son of Md. Sarfuriddin Ahmed 2.MD. SARFURIDDIN AHMED, Son of Md. Safi 3.MD. RAJU, Son of Md. Sarfuriddin Ahmed All Residents of Fazel Colony, Gosai Tola, P.S. Alamganj, Town & District Patna. ………..Petitioners Versus 1.THE STATE OF BIHAR 2.MAHJABI KHATOON, Daughter of Md. Ali Resident of Bazar Tola, Kako, P.S. Kako, District Jehanabad. ……….Opposite Parties For the Petitioners :- Mr. Partha Sarthy, Advocate For the Opposite Parties No. 2 :- Mr. F.A. Khan, Advocate For the State :- Mr. Damodar Pd. Tiwary, A.P.P. * * * * * P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA * * * * * Akhilesh Chandra, J. Heard learned counsel for the petitioners, learned counsel for the opposite party no. 2 and learned Additional Public Prosecutor for the State. 2. This is an application under Section 482 of the Code of Criminal Procedure, seeking quashing of order dated 13.02.2006 passed by Sub-Divisional Judicial Magistrate, Jehanabad in Trial No. 1502 of 2005 refusing the prayer of the petitioners made under Section 245(2) of the Code of Criminal Procedure. 3. During course of arguments, learned members of the Bar are in agreement that impugned order itself is pre-matured 2 as it is based on the evidence recorded during enquiry mainly for the purposes of taking cognizance. 4. It is further pointed out that against order taking cognizance, petitioners had knocked the doors of this Court by filing Cr. Misc. No. 27708 of 2004 which was disposed of on 25.11.2005 with a liberty to agitate his points at appropriate stage. 5. Immediately after receipt of order aforesaid on the prayer of the petitioners, the trial court heard the parties and has passed the impugned order without taking care that in compliance of provision as contemplated under Section 244 of the Code of Criminal Procedure, which reads as such :- “ Evidence for Prosecution – (1) When, in any warrant-case instituted otherwise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.” Neither the prosecution side was given any liberty to 3 adduced evidence to substantiate the allegations nor any such material (which was not available) was considered and impugned order has been passed which is not sustainable, consequently this application stands allowed, accordingly quashed. The parties are at liberty to seek their remedy before the court below, who shall pass appropriate order after recording evidence on behalf of the opposite party no. 2, if any. As prayed by learned counsel for the opposite party no. 2, court below is further directed to issue a fresh notice to the parties concerned for needful, taking into consideration the time elapsed. Patna High Court Dated : 18th November, 2010 Praveen/- N.A.F.R. (Akhilesh Chandra, J.)