IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2046 of 2008 1. JOKHAN SAH, S/o late Baidyanath Sah 2. Most. Panna Devi @ Most. Panna, W/o Late Baidyanath Sah, Both resident of village - Godwa Tola, Barwat, P.S. Bettiah (Muffasil) District – West Champaran at Bettiah … Petitioners Versus 1. THE STATE OF BIHAR 2. Most. Deepraji, W/o Late Hira Sah, R/o of village - Godwa Tola, Barwat, P.S. Bettiah (Muffasil) District – West Champaran at Bettiah ….. Opp. Parties ----------- For the petitioners : Dr. Amrendra Kumar No. 1, Advocate For the State : Dr. Mayanand Jha, A.P.P. For O.P. No. 2 : Mr. Umesh Chandra Verma, Advocate ------- O R D E R The two persons arrayed as accused in Complaint Case No. 2109 (C) of 2006 have prayed for the quashing of the order dated 12.10.2007 passed by Sri D. Mishra, Judicial Magistrate, 1st Class, West Champaran at Bettiah, whereby they have been summoned to face trial for offences under sections 436/34 I.P.C. That one Mostt. Deepraji, impleaded as O.P. No. 2 herein, had filed the aforesaid complaint inter alia stating that she along with her family members was sleeping in her house at around 11 P.M. in the night of 1.11.2006. Suddenly on alarm raised by Umrawati Devi regarding fire and seeing her flee the complainant along with her family members along with others villagers who had woken up also fled . In the light of the burning fire she saw accused no. 1 hiding a bottle. The burning fire was doused by the co-villagers and eventually it was found that all articles had been burnt including the - 2 - chouki, whereupon were kept the bedroll, mosquito-net etc. The claim is that the accused persons had set her house on fire and destroyed articles and materials worth Rs. 20,000/- It is said that after holding of the inquiry under section 202 Cr.P.C. the learned Magistrate rejected the complaint under section 203 Cr.P.C. on 22.12.2006 which led the complainant to file Cr. Revision No. 22 of 2007 before the Sessions Judge, West Champaran at Bettiah. The revision was heard by the learned Presiding Judge, Fast Track Court No. II,West Champaran at Bettiah, who remanded it back by order dated 31.7.2007, whereafter one fresh witness namely, Firangi Sah, was examined and then passed fresh orders in accordance with law. It transpires from the order of the learned Judicial Magistrate, 1st Class, that he was not satisfied with the evidentiary value of the deposition of aforesaid Firangi Sah but since he was bound by the orders of the revisional court he had directed for issuance of summons against the petitioners. I have had the occasion to peruse the order of the revisional court as also the latter order of the learned Magistrate and it appears therefrom that neither of the courts below appear to have applied their judicial mind. It is evidently clear from the order of the learned Magistrate that although he was not satisfied with the evidentiary value of Firangi Sah yet he had directed for issuance of summons only because he found himself bound by the order of the revisional court. - 3 - A plain reading of Section 190 Cr.P.C. shows that cognizance of an offence can only be taken by a Magistrate if he is prima facie satisfied that the offence is made out but the impugned order clearly shows that there had been no application of mind. As such the impugned order passed by the learned Magistrate on 22.12.2007 so far as the petitioners are concerned is hereby quashed and the application is allowed. Patna High Court, Patna. Dated : The 16th of February, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)