IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25222 of 2007 MRITYUNJAY KUMAR JHA, son of Shivjee Jha, resident of village Kahra, P.S. and District Saharsa … Petitioner Versus 1. THE STATE OF BIHAR 2. Kripanand Jha, son of late Bhushan Jha 3. Pashupati Jha, son of Kripanand Jha 4. Rakesh Kumar Jha, son of Kripanand Jha Serial Nos. 2 to 4 are resident of village Kahra, P.S. and District Saharsa … Opp.Parties. ----------- 6. 4.2.2010 Heard Mr. Prem Kumar Jha, counsel for the petitioner and Mr. Ajay Kumar Roy, counsel for the opposite parties no. 2 to 4. In this application the petitioner has assailed the order dated 10.4.2007 passed by the Addl. Sessions Judge, F.T.C.VI, Saharsa in Cr. Revision No. 30/2006, whereby and whereunder the order passed by the Chief Judicial Magistrate, Saharsa taking cognizance for offence under section 188 I.P.C. has been set aside. Mr. Jha, learned counsel for the petitioner, would submit that it is always within the domain of the court empowered to condone the delay to pass an appropriate order in case such an application is filed for condoning the delay and normally such exercise of discretionary power cannot be made subject matter of 2 judicial review by the superior court. He would, therefore, submit that the revisional court had unnecessarily dwelt upon the aspect that there was no recording of satisfaction by the learned Chief Judicial Magistrate in condoning the delay, especially when there was an application seeking condonation of delay which was considered and on the basis of which the learned Magistrate had proceeded to take cognizance of the offence after recording his satisfaction. Per contra, learned counsel for the opposite parties would submit that if the order of the learned Magistrate itself is examined it would be found that it is a stereo type mechanical order and does not fulfilled the test of sections 468 and 469 of the Code of Criminal Procedure, inasmuch as such satisfaction of condoning the delay has to be at least borne out by way of reasons from the order itself. This Court would find that for an offence under section 188 I.P.C. the cognizance could have been taken only on the report of the police submitted by the Sub-divisional Magistrate. There was certain explanation given in such application and therefore, if those reasons 3 were forming part of the satisfaction of the learned Magistrate he had to briefly state those reasons because a right had vested in the accused as with regard to their being exonerated after expiry of the period of limitation as provided under section 471 of the Code. In absence thereof the opposite parties had definitely found themselves to be at a loss as to why such condonation petition was allowed. In that view of the matter, technically speaking the order of the revisional court does not suffer from any infirmity but then in substance the revisional court was also required to go into the contents of the limitation application. Had it done so it could have easily inferred that there was sufficient material in the limitation application and therefore, the revisional court itself in exercise of its power could have directed the court below to reconsider the issue of limitation afresh. The revisional Court should not have in fact left the matter in lurch so as to allow the offence of this nature go unpunished, if there was evidence for the same. Since this Court has found that the order of the revisional court is not fully correct and at the same 4 time the approach of the Chief Judicial Magistrate was also very mechanical, it would set aside the revisional order as also the order passed by the Chief Judicial Magistrate and remit the matter back to the Chief Judicial Magistrate to consider the matter afresh in the light of the application seeking condonation of delay already on record and pass an appropriate order in accordance with law. With the aforesaid observations and directions this application is, accordingly, disposed of. (Mihir Kumar Jha,J.) Surendra/