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2002 DIGILAW 477 (PAT)

Sanjay Singh v. State Of Bihar

2002-04-11

SHIVA KIRTI SINGH

body2002
Judgment 1. Heard the parties and perused the original record which had been called for. 2. It has been submitted on behalf of the petitioner that although petitioner is named as an accused in the first information report but after investigation police submitted charge sheet against other accused persons but did not send this petitioner Sanjay Singh for trial. It has been submitted that a perusal of the impugned order dated 11.8.2000 passed by the learned Chief Judicial Magistrate, Buxar in GR case no. 606/2000 shows that the learned magistrate initially indicated in the order that petitioner had been falsely implicated and hence petitioner was being discharged. However in the later part of the order while giving the names of other accused persons against whom cognizance was being taken the name of the petitioner was also inserted at two places at the end of the list of the accused persons against whom cognizance was taken. 3. On behalf of O.P. no. 2 the informant it has been submitted that police gave a wrong opinion regarding the petitioner and as a fact there are materials available in the diary against him and therefore cognizance against the petitioner is proper. According to the O.R no. 2 magistrate has power to differ from the opinion of the police and take cognizance on the basis of the materials on record. 4. In this case the submission advanced on behalf of the petitioner is not to the effect that magistrate could not differ from the opinion of the police report. The submission is that magistrate agreed with the opinion of the police and by clear order discharged him. At that stage there was a protest petition filed on behalf of the informant dated 29.6.2000 as the original record shows that the learned magistrate did not refer to the same in the impugned order dated 11.8.2000. It is clear that on second thought or on subsequent persuation the name of the petitioner was added to the list of accused persons against whom cognizance had been taken by the same order initially. 5. Considering all the facts and the circumstances this court finds that the learned Chief Judicial Magistrate, Buxar, did not pass proper order in accordance with law. 5. Considering all the facts and the circumstances this court finds that the learned Chief Judicial Magistrate, Buxar, did not pass proper order in accordance with law. ft was not proper for him to accept the version of the police with regard to petitioner without noticing the protest petition and at the same time when he had accepted the final report with regard to the petitioner, it was improper for him to include the name of the petitioner among the list of the accused persons against whom cognizance had been taken. 6. For all these reasons this court sets aside the order dated 11.8.2000 with respect to the petitioner and remands the matter back to the learned Chief Judicial Magistrate for passing a fresh order in accordance with law. This application is allowed to the extent indicated above.