IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.49222 of 2007 1. KRISHNA MANI DEVI wife of Mahendra Singh 2. Ramesh Singh 3. Mahendra Singh. Both sons of Late Jatun Singh village Salempur, P.S. Paraiya, District Gaya Versus 1. STATE OF BIHAR 2. Arvind Singh son of Sri Paras Singh, resident of salempur, Paraiya, District-Gaya. ----------- 5. 27.02.2009 Heard leaned Counsel for the petitioners, the State and for opposite party no. 2. The petitioners are aggrieved by the order dated 24.8.2007 passed by F.T.C. II, Gaya in Sessions trial No. 101/2005 by which application for discharge under Section 227 Cr.P.C. arising out of Paraiya P.S. Case No. 75 of 2003 under Section 307 and other provisions of the Penal Code has been rejected. At this stage, this Court does not consider it necessary to go into the questions raised on behalf of the petitioners of false implication from the submission of delay in the institution of complaint case no. 1261 of 2003 sent for investigation under Section 156(3) Cr.P.C. registered as Paraiya P.S. Case No. 75 of 2003. Under the Code of Criminal Procedure, the Police after investigation submits report under Section 173 of the Cr.P.C. The Magistrate may take cognizance thereafter if charge sheet is submitted. In the event of a final report, the Magistrate may accept the same after hearing the informant or may differ with the final report and proceed to take cognizance. The Magistrate also has the option to direct further investigation. If the Magistrate takes cognizance he is required to furnish the required papers to the accused under Section 207 Cr.P.C. or under Section 208 in a case of 2 Sessions triable cases. Commitment to the Sessions Court is then made under Section 209 Cr.P.C. followed by framing of charges under Section 211 Cr.P.C. In the facts of the present case, the Magistrate relied upon the case diary to differ with the Police report and took cognizance. When the application for discharge was moved, the Magistrate was required to make up his mind, if there were materials sufficient to go for trial on the basis of the materials collected during investigation compiled in the case diary. At this stage, the Magistrate was not at the stage of examination of evidence or witnesses. All that he was required to see was whether the materials collected during investigation were sufficient to go for trial. The impugned order while rejecting the application for discharge relied upon extraneous materials of affidavits filed on behalf of the prosecution. It refused to take into consideration the relevant materials collected during investigation by holding that “the case diary is useless”. Such an order amounts to abdication of exercise of judicial power by the Magistrate when he takes into consideration irrelevant materials and refused to take into consideration relevant materials. The order dated 24.8.2007 is, therefore, not sustainable and is set aside. The matter is remanded to the court of F.T.C. II, Gaya to decide the matter afresh in accordance with law. AKS/- (Navin Sinha,J.)