IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.2825 of 2009 1. Bishwanath Prasad Singh @ Bishwanath Singh son of Late Awadh Bihari Singh 2. Uma Shankar Singh @ Uma Singh s/o Jagarnath Singh 3. Umesh Singh son of Late Nandu Singh 4. Ramnath Pd. Singh @ Ram Nath Singh son of Sri Bishwanath Singh & 5. Jagarnath Singh son of Late Mukund Singh All resident of village-Mahathi Dharamchand, P.S. Tisiauta, District- Vaishali ...Petitioners Versus 1. THE STATE OF BIHAR & 2. Prem Nath Singh son of Bishwanath Singh, resident of village-Mahathi Dharamchand, P.S. Tisiauta, District- Vaishali …opposite parties ----------- For the petitioner : Mr. Pritish Kr. Lal, Advocate For the O P No.2 : Mr. Mahendra Thakur, Advocate For the State of Bihar : Mr. C. Jawahar, APP ------------- 3/ 28.07.2010 The petitioners seek quashing of the entire proceeding including the order dated 3.12.2008 passed in Complaint Case No.1531 of 2005/ T.R. No.1938 of 2008, by which he has taken cognizance under sections 447, 379 and 385 Indian Penal Code. The case of the complainant, who happens to be the son of the petitioner no.1 and brother of petitioner no.4, was that the accused persons broke open the door of his room and committed loot of grains and clothes etc. wroth about one lac rupees. After the examination of the complainant on solemn affirmation other witnesses were examined and the court was pleased to dismiss the complaint by order dated 20.2.2006. However, the complainant moved the Sessions Judge, Vaishali, in revision vide Cr. Revision No.102 of 2006, who set aside the order of dismissal and remitted the matter to the court below for holding further enquiry as - 2 - required under section 398 Cr. P. C. However, it appears that the Magistrate without holding any further enquiry has taken cognizance by order dated 3.12.2008, on the same materials which is purely in contravention to the purport of Section 398 Cr. P. C. which envisages a “further enquiry” in the matter. This was the view of Hon’ble Supreme Court in a case reported in AIR 1981 SC 1155 (Mohammad Atullah Vs. Ram Saran Mahto) and subsequently followed by our High Court in the decision reported in (1990) 1 BLJR 340 (Lalit Madhusudan Chand and another Vs. Irkus Toppo and another). In a somewhat similar situation Division Bench of our Court in a case reported in 1994 (2) PLJR 96 HC (Yamuna Pathak Vs. The State of Bihar & another) held cognizance on supplementary chargesheet without any additional material bad on the ground that the cognizance was a reconsideration of the already subsisting material and not on “fresh evidence”. In view of such, this application is allowed and the order dated 3.12.2008 passed in Complaint Case No.1531 of 2005/ T.R. No.1938 of 2008 by the Judicial Magistrate, 1st class, Vaishali at Hajipur, is hereby quashed. Application stands allowed. JA/- (Anjana Prakash, J.)