Judgment Hari Lal Agarwal, J. 1. There are 11 petitioners in this application and they have filed the present application under section 482 of the Code of Criminal procedure for quashing an order taking cognizance under section 302 of the indian Penal Code against them by the Chief Judicial Magistrate, Samastipur. 2. The relevant facts may be briefly stated. On 2nd of December, 1965, a first information report was loged by the Chawkidar (Jibachh Paswan) of village Charo under Warisnagar police station stating that while he was on petrolling duty in the said village, he heard at about 2 a. m. sound of cutting paddy. He became suspicious and went towards the site from where the sound was heard and apprehended the crop-cutter, Ramautar Raut, the deceased. He raised an alarm of "chor-Chor", upon which Baleshwar (petitioner No.7), ramswarup Mahto (petitioner No.6), Gaya Mahto (petitioner No.5), Ramuchit (petitioner No.2), Kusheshwar Mahton (petitioner No.3) and Raghubar (not a petitioner), all residents of village Charo along with a large number of persons, came there and saw the cut paddy. All the above persons, on being informed by the informant that Ramautar Raut was stealthily cutting the paddy crop, began to assault the thief (Ramautar Raut) with fists, kicks and slaps. The chawkidar, Ramuchit Mahto, and petitioner No.3 tried to intervene, but ramautar Raut died within an hour as a result ofthj assault. On the basis of the above first information report, ths Police registered a cognizable case for investigation. 3. On 4.12.1965, only two days after the lodging of the first information report, one Chauthi Rai, uncle of the deceased Ramautar, filed a petition of complaint before the Subdivisional Officer, Samastipur, giving out entirely a different story of the occurrence. According to him, the complainant along with the deceased and another had gone to purchase a bullock to Muktipur cattle fair on 1.12.1965. The deceased had with him Rs.350. They, however, did not purchase the bullock and were returning to their village. The complainant and his companion Krishnadco Rai, were proceeding a little ahead of the deceased. When they reached near the school liberary of the village, they heard the alarm of Ramautar. Thereupon they rushed back and on reaching there they saw that the deceased was being assaulted by all the 11 petitioners with lathis, split bamboo, etc. The complainant and his companion Krishnadco Rai, were proceeding a little ahead of the deceased. When they reached near the school liberary of the village, they heard the alarm of Ramautar. Thereupon they rushed back and on reaching there they saw that the deceased was being assaulted by all the 11 petitioners with lathis, split bamboo, etc. The accused persons after killing ramautar fled away along with Rs.350 from the possession of the deceased. 4. The Subdivisional Officer ordered an enquiry in the matter by the deputy Superintendent of Police, Samastipur. The Deputy Superintendent of police on enquiry reported that the case was false and the accused persons were implicated in this case due to enmity. 5. Two protest petitions were filed by the complainant, one on 3.1.66 and another on 17.1.66, before tne Subdivisional Officer, but the Subdivisional officer, by his order dated 6.5.1969 dismissed the petition of complaint under section 203 of the Code of Criminal Procedure on the basis of the police report aforesaid. The police also, in the meantime, sent a final report in the case instituted by the Chawkidar, under section 173 of the Code of Criminal procedure, which was also accepted by the Subdivisional Officer. Against the order, dismissing the complaint, the complainant filed a revisional application before the Sessions Judge, Darbhanga, who ordered for further enquiry on 16.12.1970. Thereupon the Subdivisional Officer ordered a fresh enquiry under section 202, Criminal Procedure Code by a Magistrate Shri M. S Hoda. The magistrate also examined certain, witnesses and submitted his report against the complainant. The petition of complaint was again dismissed on 22.7.1972 on the basis of the magisterial enquiry. The complainant did not leave the matter still and again filed a revisional application before the Sessions Judge, who again directed for a further enquiry. This time the further enquiry was held by an Executive Magistrate, Shri Kesho Prasad. The petition of complaint was again dismissed on 22.7.1972 on the basis of the magisterial enquiry. The complainant did not leave the matter still and again filed a revisional application before the Sessions Judge, who again directed for a further enquiry. This time the further enquiry was held by an Executive Magistrate, Shri Kesho Prasad. The Executive Magistrate also submitted a report against the complainant, but in spite of this report, the learned Chief Judicial Magistrate to whom the matter happened to be placed on coming into force of the new Code of Criminal Procedure, by his order dated 7.4.1976, disagreeing with the enquiry report, took cognizance of the case under section 302 of the Indian Penal Code against all the accused persons named in the petition of complaint and transferred the case to the court of another 1st class Judicial Magistrate for proceeding in the matter. It is this order which has been impugned and challenged in this court. 6. From the narration of the facts, as stated above, it would appear that there is a material variation in the prosecution case as reported by the village Chowkidar to the police and as set out by the complainant in the petition of complaint in question. Whereas according to the village Chowkidar, the deceased died on account of the injuries sustained at about 2 a. m. in the night while he was stealthily cutting paddy crops, according to the case made out in the petition of complaint, he was killed by the petitioners and some other persons at about 8 Jo 9 p. m. while he was returning from the Mela. Therefore, there is not only a shift in the time and place of the occurrence, there is also a change regarding the genesis of the occurrence. The Subdivisional magistrate did not find any ground to proceed in the matter and even repeated enquiries by the police and Magistrates did not support the prosecution case. The last enquiry report which was against the complainant was placed before the Chief Judicial Magistrate. Of course, he was not bound to accept the enquiry report and could take a different view in the matter. The last enquiry report which was against the complainant was placed before the Chief Judicial Magistrate. Of course, he was not bound to accept the enquiry report and could take a different view in the matter. The question, however, arises as to whether on the facts and in the circumstances mentioned above, it can be held that the learned Magistrate was justified in taking cognizance against all the accused or his order would amount to an abuse of the process of the Court. 7. We have seen that on filing of complaint, the Sub-divisional magistrate did not feel satisfied to issue processes for the offence and ordered an inquiry. It is well established that it is only when a Magistrate doubts the truth of the allegations made in a complaint that he orders enquiry and that he ought not to proceed to take cognizance of the offence until the enquiry report is submitted and his doubt is removed. None of the inquiry reports supported to case of the complainant rather said that his case was false. It is not the case of the prosecution that there was any other adequate material placed before the learned Judicial Magistrate for the purpose of removing the doubt. 8. In Chandra Deo Singh V/s. Prokash Chandra Bose and another ( AIR 1963 SC 1430 ), it was observed by the Supreme Court that one of the objects behind the provisions of section 202 of the Code of Criminal Procedure is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named there as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out that material there is to support the allegation made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. It is, no doubt, true that the defence of the accused whatever he might have, can only be enquired into at the trial, a duty has been cast upon a Magistrate to proceed in the matter only if he feels satisfied of course prima jade at this stage, that there is sufficient ground for proceeding in the matter. There is a slight change in the scope of the inquiry under the old Code and the new Code of Criminal procedure. Whereas under the old Code, the purpose was for "ascertaining the truth or falsehood of the complaint", under the new Code, the purpose has been slightly narrowed down, and that is as to "whether or not there is sufficient ground for proceeding". None the less, whether the evidence is adequate for supporting the conviction can be determined only at the trial, and not at the stage of enquiry, a duty has been imposed upon the Magistrate taking cognizance to scrutinise the materials before actually issuing processes and 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 or statements made in an investigation under that section, as the case may be, although his satisfaction should be only prima facie in this regard. The Magistrate, of course, has been given an undoubted discretion in the matter, the discretion has to be judicially exercised by him, and once the discretion has been exercised, it would not be within the domain of this court to substitute its own discretion for that of the Magistrate. 9. In the case of Smt. Nagawwa V/s. Veeranna Shivalingappa Konjalgi and others, ( AIR 1976 SC 1947 ), the Supreme Court observed that where the discretion exercised by the Magistrate in issuing processes is capricious and arbitrary, having been based either on no evidence or on materials which are wholly irrelevant or inadmissible, the order issuing process against an accused can be quashed or set aside by the High Court. 10. 10. The above discussion leads us to the well-known case of R. P. Kapur v. State of Punjab, ( AIR 1960 SC 866 ). Learned counsel for the petitioners on this authority contended that the allegation made against the petitioners in the petition of complaint although might constitute an offence alleged, the evidence adduced in the inquiry in this case clearly and manifestly failed to substantiate the same and, therefore, the case was covered by the category No. III enumerated in this decision. Pursuing this contention, learned counsel further contained that the evidence of the witnesses examined by the Executive Magistrate was inconsistent with the accusations made against the petitioners and did not support the prosecution case. 11. There seems to be force in this contention. In his order dated 7.4.1976 issuing process, the learned Chief Judicial Magistrate after stating the previous history of the case has relied upon the only circumstances, namely, in such circumstances, it is apparently clear that the victim was done to death by brutal assault, which the postmortem examination also undeniably proves. The only question now is regarding the correctness of manner of occurrence leading to the death as alleged by the prosecution case be decided in the trial court in a full dress trial. Hence I do not accept the report of the E. O. and i take cognizance in this case under section 302, Indian Penal Code. . . . . " it is, no doubt, true that it was open to the Magistrate to scrutinise the evidence produced by the prosecution in support of its case in inquiry proceeding, and to form his own opinion on that evidence, even contrary to that formed by the Enquiring Magistrate, but certainly the manner in which the learned magistrate has proceeded to issue processes is wholly arbitrary and capricious. The discretion of the learned Chief Judicial Magistrate, as it appears from the relevant portion of the order extracted earlier, is not based on any material, save and except that the victim was done to death by brutal assault, a fact which was not in issue and was already there when the complaint was filed. The discretion of the learned Chief Judicial Magistrate, as it appears from the relevant portion of the order extracted earlier, is not based on any material, save and except that the victim was done to death by brutal assault, a fact which was not in issue and was already there when the complaint was filed. This circumstances, however, did not impel his predecessor in interest, namely the Subdivisional Magistrate to issue processes and he wanted to remove his doubt as to whether in the occurrence in question, there was any hand of the accused persons named in the complaint. The learned Chief Judicial Magistrate has not addressed himself on this question at all and, therefore, it must be held that the manner in which he has proceeded in the matter, particularly when such a long time had elapsed i. e. about more than twelve years from the date of the occurrence and the date of the issue of processes, in my view, he acted in an arbitrary and capricious manner in the matter and it is a fit case for exercise of the inherent powers of this court 12. Learned counsel for the petitioners, however, was modest in his prayer and at the outset he did not press this application on behalf of three of the petitioners who were mentioned by Chaukidar Ramuchit Mahto as the assailants of the deceassd, namely, Baleshwar Mahto (petitioner No 7), ramswarup Mahto petitioner (No.6) and Gay a Mahto (petitioner No.5) as there were definite allegations of overt acts by them. 13. For the reasons stated above, I would allow this application in part and quash the proceeding save and except against the aforesaid three petitioners, namely, Gaya Mahto (petitioner No.5), Matru Mahto (petitioner No.6)and Baleshwar Mahto (petitioner no.7 ). It would, however, be open for the trial court to summon any other accused if any evidence comes against him in course of the trial. Application allowed.