IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25452 of 2007 1. KESHO SAO, S/o Late Makholi Sao 2. Ravi Kant Gupta @ Sonu Kumar, S/o Kesho Sao 3. Sanjay Sao, S/o Kesho Sao 4. Poonam Devi, W/o Sanjay Kumar, all r/o Daldali Road, P.S. Kadamkuan, District Patna 5. Ranjan Sao, S/o Ram Swaroop Sao, R/o village Kurthaul, P.S. Parsa, District Patna 6. Sita Ram Sao, S/o Late Saryu Sao, R/o village Baidrabad, P.S. & District – Arwal. ….. Petitioners Versus 1. STATE OF BIHAR 2. Damyanti Devi, W/o Ram Sewak Sao, Daldali Road, P.S. Kadamkuan, District – Patna. ….. Opp. Parties ----------- 5 22.10.2008 Heard Mr. Rama Kant Sharma, learned Senior Counsel for the petitioners, Mr. Vivekanand Vivek, learned counsel for O.P. no. 2 and Mr. Jharkhandi Upadhaya, learned A.P.P. for the State. The grievance of the petitioners is against the order dated 12.4.2007 passed by Sri S.K.Mishra, Judicial Magistrate, 1st Class, Patna, in Complaint Case No. 2758 C of 2004, whereby he has taken cognizance of offences under sections 364 and 120B I.P.C. against the petitioners subsequently on remand from the revisional court vide order dated 20.1.2007 passed by the learned 7th Addl. Sessions Judge, Patna, in Cr. Revision No. 910 of 2005 after he had initially rejected the complaint under section 203 Cr.P.C. It appears that O.P. No. 2 herein, the complainant Damyanti Devi, filed the aforesaid complaint before the learned Chief Judicial Magistrate, Patna, alleging commission of offences under sections 364 / 120B I.P.C. at the hands of the accused persons. An inquiry under section 202 Cr.P.C. was held by the transferee court of - 2 - Sri S.K.Mishra, Judicial Magistrate, 1st Class, Patna, who after having recorded the statement of the complainant on S.A. and the three witnesses produced on her behalf by order dated 30.9.2005 dismissed the complaint under section 203 Cr.P.C. Aggrieved by the said order the complainant approached the Sessions Court in Cr. Revision No. 910 of 2005 which was disposed of by the 7th Addl. Sessions Judge, Patna, by order dated 30.1.2007. The Revisional Court having perused the evidence available on the record of the complaint case was of the opinion that the learned Magistrate had weighed the evidence of the witnesses at the inquiry to ascertain the truth vis – a – vis falsity of the allegations which, in his opinion, the Magistrate was not legally bound to do and having set aside the order of the Magistrate dated 30.9.2005 he allowed the revision and directed the Magistrate to pass orders in accordance with law. On remand of the case from the revisional court learned Magistrate without further adieu or having held further inquiry under section 202 Cr.P.C. relying on the findings of the revisional court graceful and in circumventing his earlier order immediately took cognizance of offences under sections 364 and 120B I.P.C. on the very same set of evidence on the basis whereof he had earlier dismissed the complaint petition under section 203 Cr.P.C. Apparently both the revisional court as also learned Magistrate have fallen into grave error which no ordinary person in the natural course of things would have accepted as correct. For the purpose it would only be proper to refer to the - 3 - case of Chandradeo Singh Vs. Prokash Chandra (AIR 1963 SC 1430) wherein their Lordships having relied on the decision of Ramgopal Ganpatrai Ruia Vs. State of Bombay (AIR 1958 SC 97) and the Halbury’s Laws of England Vol. 10, 3rd Edition observed that since the object of an inquiry under section 202 Cr.P.C. is to ascertain whether the allegation made in the complaint are intrinsically true the Magistrate acting under section 203 Cr.P.C. has to satisfy himself that there is sufficient grounds for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an inquiry under section 202 Cr.P.C., or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any other material besides this. Where there is a prima facie evidence, even though an accused may have a defence that the offence is committed by some other person or persons, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. In the instant case at the first instance the learned Magistrate having considered the evidence recorded by him gave to a finding that no prima facie case had been made out against the accused and rightly dismissed the complaint under section 203 Cr.P.C. The revisional court unaware of the decision of the Apex Court in Chandradeo Singh’s case (supra) and several decisions of this Court which had placed reliance on the aforesaid judgment out - 4 - of absolute ignorance allowed the revision and remitted back the matter to the Magistrate for passing fresh orders. Apparently the revisional court has misdirected itself by travelling beyond the limits of jurisdiction vested upon him by the provisions of Sections 397 and 401 Cr.P.C. On remand the learned Magistrate devolved a novel method of circumventing his earlier decision and meekly following the direction of the revisional court and without further adieu and without holding further inquiry or stating reasons for having changed his opinion / decision has forth rightly stated that in view of the findings of the revisional court making out offences under sections 364 and 120B I.P.C. he was taking cognizance against the accused. The order clearly shows that the Magistrate has not applied his mind to the materials on record and merely on the dictates of the revisional court he has taken cognizance. Such orders only depicts the causal manner of the learned Magistrate. Such orders cannot be sustained in the eye of law and has to be quashed. Accordingly the order dated 12.4.2007 taking cognizance against the petitioners is hereby quashed and the application is allowed. Spd/- (Abhijit Sinha, J.)