IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.52866 of 2007 1. KRISHNADEO PRASAD, SONOF LATE CHAMARI GARAI 2. NARESH PRASAD, SON OF LATE MALO MAHTO 3. MUNESHWAR NARAYAN, SON OF SHRI DEVENDRA PRASAD 4. MUNNAKUMAR, SON OF NARESH PRASAD 5. BUNTI KUMAR, SON OF NARESH PRASAD 6. ANUJ PRASAD, SON OF LATE CHAMERI MAHTO ALL RESIDENT OF VILLAGE MOBARAKPUR, P.S. ISLAMPUR, DISTT. NALANDA. ------- PETITIONERS. Versus 1. STATE OF BIHAR 2. SHRI SURENDRA PRASAD, SON OF LATE ROHI GARAI RESIDENT OF VILLAGE MOBARAKPUR, P.S. ISLAMPUR, DISTT. NALANDA. ------ OPPOSITE PARTIES. ----------- For the petitioners : Mr. Shailendra Kumar Sinha, Advocate Mr. Raj Kumar, Advocate For the State : Mr. Dayanand Jha, A.P.P. For the Opposite Party No. 2 : Mr. Sunil Prasad, Advocate. ------- 3. 09/04/2010 Heard learned counsel for the petitioners, learned counsel for the Opposite Party No. 2 and the State. The petitioners seek quashing of the order dated 31.7.2007 passed by the Judicial Magistrate, 1st Class, Hilsa, Nalanda, in Islampur P.S. Case No. 143 of 2003, G.R. No. 1008 of 2003 by which disagreeing with the final report he has taken cognizance in the matter. On an earlier occasion, the petitioner has sought quashing of cognizance vide Cr. Misc. No. 48456 of 2005 and the same was set aside by an order dated 11.5.2007 and the matter was remanded to the court below for a fresh appreciation since the Magistrate had not enumerated the reason for disagreeing with the final report. On such remand, the Judicial Magistrate, 1st Class, Hilsa has once again taken cognizance in the matter by an order dated 31.7.2007. - 2 - On 10.2.2009, the appearance of the opposite Party No. 2 was noted who had sought time to file a counter affidavit and the matter was posted two weeks later but till date more than a year later, he has not filed counter affidavit and seeks time once again. However, since this Court is not going into the contentious issues on merits, I do not think there is any justification for allowing any further time to the opposite party No. 2. On perusal of the order dated 31.7.2007, it is manifest that the Magistrate by passing the said order has considered the entry of the case diary as well as the protest petition which he could not have gone into in a Police case. It is well settled principle of law that at the stage of taking cognizance, the Magistrate is only to see the materials that are available in the Police case by way of the First Information Report, the case diary and the charge sheet and no other documents. In view of such, this application is allowed and the order dated 31.7.2007 passed by Judicial Magistrate, 1st Class, Hilsa, in Islampur P.S. Case No. 143 of 2003, G.R. No. 1008 of 2003 is set aside. The application is allowed. S.Ali (Anjana Prakash, J.)