IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellanious No.15552 of 2007 ====================================================== 1. Kusheshwar Singh 2. Kamleshwar Singh both sons of late Narayan Singh resident of village Rusulpur Osti P.O. and P.S. Mahua, District Vaishali .... .... Petitioners Versus 1. The State Of Bihar 2. Akhilesh Kumar Singh, son of late Narendra Prasad Singh, resident of village-Rusulpur Osti, P.O.& P.S.-Mahua, District-Vaishali .... .... Opposite Parties ====================================================== Appearance : For the Petitioners : Mr. Madan Mohan Prasad, Advocate Mr.Manindra Kumar, Advocate Mr. Anurag Pandey, Advocate For the Opposite Parties : A.P.P ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 12 17.05.2011 This application under Section 482 of the Code of Criminal Procedure is filed by two brothers against the summons issued against them under order dated 11th August 2006 made by the learned Chief Judicial Magistrate, Vaishali at Hazipur in Mahua P.S. Case No. 214 of 2005(G.R.No.2850 of 2005). On 12th September 2005 a First Information Report for commission of offence punishable under Sections 341, 323, 324, 307, 379, 504 read with Section 34 I.P.C. was lodged against the seven persons including the two Patna High Court Cr.Misc. No.15552 of 2007 (12) dt.17-05-2011 2 petitioners. After investigation, on 24th June 2006 the police submitted report against three of the accused persons. It was submitted that the investigation against accused Nos. 1 and 4 was still pending meaning thereby no report, was made against accused Nos. 2 and 7, the present petitioners. After accepting police report, on 11th August 2006 the learned Chief Judicial Magistrate directed summons to issue against the three accused persons and also against two petitioners against whom no chargesheet was filed by the police. Feeling aggrieved by the cognizance taken by the learned Chief Judicial Magistrate, the petitioners preferred Cr.Rev. No. 207 of 2006 before the learned Sessions Judge, Vaishali at Hajipur. According to the petitioners the offence was exclusively triable by the Sessions Court. Since the name of the petitioners were not disclosed in the chargesheet the learned Chief Judicial Magistrate had no jurisdiction to take cognizance of offence against the petitioners or to issue summons against them. The said contention was supported by the judgment of the Hon’ble Supreme Court in the matter of Kishori Singh and Others versus State of Patna High Court Cr.Misc. No.15552 of 2007 (12) dt.17-05-2011 3 Bihar and Another [(2004) 13 SCC 11] . The learned Sessions Judge by his order dated 23rd December 2006 rejected the revision application. According to the learned Sessions Judge, the Hon’ble Supreme Court did not take note of the provisions contained in Section 190 Cr.P.C. The judgment of the Supreme Court was thus distinguishable. Feeling aggrieved the petitioners have preferred the present application under Section 482 Cr.P.C. The aforesaid submission made on behalf of the petitioners were not acceptable to the learned Single Judge nor did the learned Single Judge agree with the judgment of this Court in the matter of Ram Nandan Singh @ Ram Nandan versus State of Bihar and Others [2007(2)PLJR 825]. The learned Single Judge has, therefore, under order dated 19th March 2010 referred the matter to the Division Bench. The aforesaid facts are not in dispute. The Hon’ble Supreme Court has, in the matter of Kishori Singh and others (supra), categorically held that in sessions triable case the Judicial Magistrate has no jurisdiction to take cognizance of the offence against the persons not arraigned Patna High Court Cr.Misc. No.15552 of 2007 (12) dt.17-05-2011 4 in the chargesheet though they may have been named in the First Information Report. Following the said view and the other judgments of the Hon’ble Supreme Court the learned Single Judge of this Court has expressed the same view in the above referred matter of Ram Nandan Singh @ Ram Nandan and Another (supra). In our opinion, in view of the several Supreme Court judgments referred to by the learned Single Judge no other view is possible. The petitioners’ challenge to the impugned order dated 11th August 2006 ought to have been accepted and the summons ought to have been set aside. For the aforesaid reasons, we allow this application. The impugned order dated 11th August 2006 in so far as summons is directed to be issued against the present petitioners is set aside. The stay of the further proceeding in Mahua P.S. Case No. 214 of 2005 pending before the Chief Judicial Magistrate, Vaishali at Hajipur granted on 5th March 2008 is vacated. The Mahua P.S. Case No. 214 of 2005 (G.R.No.2850 of 2005) shall be proceeded in accordance with law. Patna High Court Cr.Misc. No.15552 of 2007 (12) dt.17-05-2011 5 The Registry is directed to return the police diary to the learned Judicial Magistrate, Vaishali at Hajipur forthwith. Bibhash ( R.M. Doshit, CJ.) (Jyoti Saran, J.)