IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40519 of 2008 1. ANIL KUMAR ANIL 2. Ram Sevak Choudhary Both are son of Late Bilekshan Chaudhary, Resident of Village- Ghongharar, P.S.Babubarhi, District-Madhubani. ………………….. Petitioners. Versus STATE OF BIHAR ……………………… Opposite party. ----------- 2 27.04.2009 The petitioners have a grievance against the order dated 21.8.2008 passed by the learned Sub-Divisional Judicial Magistrate, Madhubani in T.R.No.1764/08 by virtue of the order passed on the petition filed by the police/prosecution, the Sub-Divisional Judicial Magistrate, Madhubani has held that a substantive offence under Section 325 of the I.P.C is also made out in addition to some other offences and cognizance has been taken. The brief facts are that a case was instituted on 22.04.2008 by the informant with regard to certain dispute which led to altercation in which the two petitioners came to be named as accused. Based on the said F.I.R. a case was instituted for substantive offence under Section 448, 341, 323, 307, 379,504/34 of the Indian Penal Code. The matter was investigated by the police and a 2 charge sheet came to be filed only under Section 341, 323 and 504/34 of the Indian Penal Code. Cognizance of the same was taken by the Sub-Divisional Judicial Magistrate, Madhubani and the case transferred for disposal. It is alleged by the petitioners that thereafter nothing came to be done by the I.O. but all of a sudden the I.O. forwarded a report of the Medical Board before the Court of Chief Judicial Magistrate and based on the same, a Misc. case No. 1000/07 came to be instituted. In the said Misc. Case the learned C.J.M. thereafter forwarded the record (opinion of the Medical Board) to the Court concerned. When the record got transferred to the Court of Sub- Divisional Judicial Magistrate the petition was filed by the informant that a case under Section 307 of the I.P.C. was also made out and the case was fit to be committed to the Court of Sessions. Learned Sub-Divisional Judicial Magistrate, Madhubani passed the impugned order dated 21.8.2008 holding that no case under Section 307 is made out but opined that a case under Section 325 of the I.P.C. is made out. Learned counsel representing the petitioners submits that a unique kind of 3 procedure seems to have been adopted in the present matter. There was no occasion for the Chief Judicial Magistrate to institute a Misc. case and forward the record to the Court of S.D.J.M. Even if for the sake of argument there was additional material which had come during the course of investigation that additional material in further investigation should have been done with the permission of the court and suo-motu action in this regard was not called for and the Court below was not obliged to act upon it at this stage. He further submits that the additional material furnished in this regard could have been dealt with or treated at an appropriate stage by the trial Court and the order impugned passed by the Sub-Divisional Judicial Magistrate, Madhubani to that extent has caused serious prejudice to the petitioners. Learned counsel for the petitioner relies on a decision rendered in the case of Hasanbhai Balibhai Qureshi v. State of Gujarat and others. reported in AIR 2004 SC 2078. Having heard learned counsel for the petitioners and having perused the order impugned, the Court is inclined to interfere with the impugned order because the procedure 4 laid down under the Code of Criminal Procedure, does not seem to have been followed. Even if for the sake of argument, it is accepted that the police could have further investigated the matter and submitted a report or additional material to the trial Court but the same can only be looked into or relied upon by the trial Court at an appropriate stage. By passing the impugned order, the Court of S.D.J.M. Madhubani has created a prejudice of a kind which requires interference. The quashing application is allowed and the impugned order is quashed but the liberty is given to the trial Court to act upon the additional material which has been furnished by the police at an appropriate stage in accordance with law. Bibhash (Ajay Kumar Tripathi, J.)