IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7953 of 2008 MADHUKAR KUMAR, SON OF SHYAM SUNDAR SINGH, RESIDENT OF VILLAGE-BARHAIYA WARD NO.4 DANI TOAL, P.O.+POLICE STATION-BARAHIYA, DISTRICT-LAKHISARAI. ………………………………………………………………..PETITIONER. Versus THE STATE OF BIHAR………………………………OPPOSITE PARTY. ----------- For the Petitioner : Mr. Rajeev Ranjan Sinha, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ---------------- O R D E R One of the accused of Barahiya P.S. Case No.13 of 2004 has preferred this application for the quashing of the entire criminal proceedings emanating therefrom including the order dated 29.1.2008 passed therein by the learned Additional Chief Judicial Magistrate, Lakhisarai, whereby the bail petition filed by the present petitioner in compliance of the order dated 16.1.2008 passed in Cr.W.J.C. No.18 of 2008 has been rejected and the remand of the petitioner after submission of the chargesheet be declared illegal in view of Section 309(2) Cr.P.C. The facts of the prosecution case may be noticed with relative brevity. One Ajay Kumar gave a fardbeyan before the Officer Incharge of Barahiya P.S. at about 11.30 A.M. on 11.2.2004 in respect of an occurrence which had taken place earlier at about 6.15 P.M. on 10.2.2004. On the basis of the said fardbeyan, Barhahiya P.S. Case No.13 of 2004 came to be registered under Sections 462, 384, 324, - 2 - 307/34 I.P.C. and Section 27 of the Arms Act. The police investigated the case and on completion of investigation submitted a chargesheet against the petitioner under Sections 452, 324, 307, 326/34 I.P.C. and Section 27 of the Arms Act. The grievance of the petitioner is that after the chargesheet had been submitted on 1.10.2007, the instant case was adjourned for hearing on the point of cognizance till next date but till 28.1.2008 cognizance had not been taken and it was only on 28.1.2008 that the cognizance was taken by the court below against the petitioner and two other persons under the aforesaid Sections and the case was adjourned to 12.2.2008. On the aforesaid premise, it was submitted that in view of Section 309(2) Cr.P.C. taking of cognizance is a condition precedent for the exercise of power of remand in a proceeding, inquiry or trial but since in the instant case cognizance had not been taken during the relevant period (from 1.10.2007 to 28.1.2008) and in between them the court below had remanded the petitioner time after time, the same is required to be declared illegal and the impugned order is accordingly fit to be quashed. Admittedly, the order of remand prior to the taking of cognizance has been challenged after the cognizance had been taken. It is by now well settled that once cognizance had been taken the petitioner has no right to challenge the earlier order or orders of remand. The delay in taking of cognizance appears to be covered by the fact that the case diary of Barahiya P.S. Case No.13 of 2004 had - 3 - been called to the High Court in connection with three different matters arising out of the same incident, two of them preferred by none other than the petitioner himself and it was after disposal of Cr.W.J.C. No.18 of 2008 that the case diary of Bahariya P.S. Case No.13 of 2004 became available to the court below and upon its receipt by the learned Chief Judicial Magistrate cognizance had been taken. It is apparent from perusal of the impugned order that the prayer for bail by the petitioner has been rejected as no new facts or developments after the rejection of his earlier bail petition no.643 of 2007 has been agitated. I find no apparent illegality in the said impugned order. The application is accordingly dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 16th of February, 2009. Pradeep Srivastava/A.F.R.