JUDGMENT 1. - The present misc. petitions have been filed challenging the order dated 15.6.1999 passed by the learned Addl. Chief Judicial Magistrate, Kushalgarh in Criminal Case No. 312/1999 arising out of F.I.R. No. 303/1998 summoning the accused in the aforesaid case for offences under Sections 302, 149 and 120-B I.P.C. The order dated 15.6.1999 passed by the learned Addl. Chief Judicial Magistrate, Kushalgarh has been affirmed by the learned Addl. Sessions Judge, Banswara Camp Kushalgarh, Distt. Banswara by order dated 8.9.2005 passed in Revision Petitions No. 31/1999 and 5/1999. 2. Brief facts necessary for the disposal of the present misc. petitions are that one Abhay Singh Labana submitted an oral information at Police Station Dungra Chhota on 27.4.1998 alleging inter alia that dead bodies of a boy and a girl are lying in the backyard of the house of one Bhanwar Lal of Dungra Bada and that one Rakesh was living as a tenant in the said house. It was further mentioned that the dead bodies could not be identified from outside of the Courtyard. On the basis of this report, the proceedings under Section 174 Cr.P.C. being Case No. 16/1998 were registered and investigation commenced. During the course of the investigation, the dead bodies were identified to be of Rakesh and Kamla. It was also observed that some small wounds were found on the abdomen of both the deceased. The love letter exchanged between the two deceased were also found from inside the room, in which, deceased Rakesh used to live and the tenor of some of the letters was to the effect that both the deceased intended to communicate to' their respective fathers that they were ending their lives voluntarily. An empty sulphos bottle and a dagger were found lying near the place of occurrence. The vomits of the deceased were also seized and after post-mortem, the dead bodies of the two deceased were handed over to their respective family members. During the course of the enquiry proceedings, the statements of the witnesses and the family members of the deceased were recorded and they did not raise any doubt about the death of Rakesh and Kamla. 3. One and half month after the inquest proceedings, Kamla's father filed a complaint expressing doubt regards the death of his daughter on which F.I.R. No. 303/1998 was registered at Police Station Kushalgarh and investigation was commenced. 4. 3. One and half month after the inquest proceedings, Kamla's father filed a complaint expressing doubt regards the death of his daughter on which F.I.R. No. 303/1998 was registered at Police Station Kushalgarh and investigation was commenced. 4. The Circle Officer, Kushalgarh started investigating the matter and reached on a conclusion that deceased Rakesh and Kamla were having deep rooted relationship since long but the parents of both the deceased were not happy with their relationship. It was found that Kamla was studying in a school at Kushalgarh and was staying in a hostel. The investigation also revealed that deceased Kamla and Rakesh used to meet each other frequently and both of them often used to stay at the room of Rakesh for whole of the night. The conclusion of the investigation was that the deceased apprehended that their relationship would not reach to its logical conclusion due to the restriction of their parents and because of social bindings and thus they concluded their lives by consuming sulphos voluntarily. Thereafter, the file was sent to the Addl. Superintendent of Police for further investigation and he also conducted that deceased Rakesh and Kamla had committed suicide because of interference in their lives by certain persons. The chemical report of the samples of the vomits taken from the spot and the report of the visceras of the deceased disclosed that the cause of death of both the deceased was because of consumption of aluminium phosphide poison (sulphos) and accordingly, a negative FR was filed in the concerned Court i.e. the Court of Addl. Chief Judicial Magistrate, Kushalgarh. 5. The father of Kamla namely Deva filed a protest petition against the FR and requested the Court to take cognizance against the accused for offences under Sections 302, 149 and 120-B I.P.C. The protest application was treated as complaint and the statements of the witnesses were recorded under Sections 200 and 202 Cr.P.C. The learned trial Court while discharge with the FR and placing reliance on the statements of the complainant and his witnesses recorded under Section 200 and 202 Cr.P.C. has proceeded to take cognizance against the petitioners for offences as mentioned above and directed summoning of the petitioners by warrant of arrests by his order dated 15.6.1999. 6. 6. The learned Magistrate found that from the statements of the witnesses and the documents available on the FR file, it could be concluded that the accused persons assaulted the deceased by 'guptis' and other weapons and, therefore, the case was that of murder and not of voluntary suicide as concluded by the police. 7. The accused persons being aggrieved by the order of taking cognizance preferred two separate revisions being Revision Petition Nos. 31/1999 and 5/1999, which came to be heard by the learned Addl. Sessions Judge, Banswara Camp Kushalgarh, Distt. Banswara and the learned revisional Court by its order dated 8.9.2005 has also agreed with the findings of the learned Magistrate and upheld the order taking cognizance. 8. Thus, the present two misc. petitions have been filed assailing the order of the learned Magistrate taking cognizance against the petitioners as affirmed by the revisional Court. The complaint and the record of the FR proceedings have been placed on the present misc. petitions. 9. Assailing the order of taking cognizance and all subsequent proceedings, learned counsel for the petitioners Mr. Mridul Jain submits that in this case, the order of taking cognizance is totally based on conjectures and surmises. He submits that there is no direct or circumstantial evidence to even suspect that the petitioners had committed the murder of the deceased. He submits that in this case, the death of both the deceased had taken place on 27.4.1998 in the premises where Rakesh used to live. The police undertook proceedings under Section 174 Cr.P.C. and until a period of nearly one and a half month, no complaint was filed by any of the relatives of the two deceased. He further submits that the letters which have been recovered from the place of occurrence and regarding which the report of the hand writing expert has been received that the letters were written by deceased Rakesh reveal that both the deceased were having deep rooted relationship and wanted to marry each other, but the parents and the family members of the deceased were not prepared to permit the two deceased to marry each other and, as such, they voluntarily committed suicide. He also submits that during the course of investigation, a suicide note has been recovered, as per which, the deceased committed suicide voluntarily and of their own accord because they were apprehensive that their relatives would not permit them to proceed forward in their lives together. He submits that as per the post mortem report of both the deceased, the cause of death was not found to be the injuries which were found on the abdomen of each of them. He submits that from the circumstances available at the site of the occurrence, it appears that initially the deceased had tried to kill themselves by causing injuries on each other by the dagger found near the dead bodies but thereafter when they could not succeed in their attempts, both of them consumed aluminium phosphide poison and thus the cause of death has been found to be the consumption of poison. The FSL report of the visceras has revealed that the aluminium phosphide poison was found in the visceras of the dead bodies of the deceased. Thus, as per Shri Mridul Jain, once, the medical evidence as well as the chemical report of the visceras conclusively establishes that the cause of death was by consumption of poison then there could be no justification for taking cognizance for the offence of murder. 10. Per contra, learned Public Prosecutor and learned counsel for the complainant have opposed the present misc. petitions and submitted that at the stage of taking cognizance, the learned Magistrate was only required to form an opinion regarding the existence of a prima facie case, which the learned Magistrate has done while summoning the petitioners. It is further submitted that the order taking cognizance is based on the evidence given by the witnesses during investigation and in support of the protest petition and that once the learned Magistrate has applied his mind to the material collected by the police as well as the statements of the witnesses recorded under Sections 200 and 202 Cr.P.C. for arriving at a finding that a prima facie case is made out and the said finding has already been affirmed in revision, then, this Court should be slow to interfere in the concurrent findings of the Courts below. 11. I have considered the arguments advanced at bar and perused the record of the FR placed on record of the misc. petitions. 12. 11. I have considered the arguments advanced at bar and perused the record of the FR placed on record of the misc. petitions. 12. On the perusal of the record, the following un-disputed factual scenario comes to fore. (i) There is no direct evidence regarding any assault having been committed by the petitioners on the deceased i.e. to say that there is no ocular testimony by which the petitioners can be linked to with the incident. (ii) There is no evidence to the effect that the accused persons had been seen in the company of the deceased soon before their death. (iii) The death of deceased Rakesh and Kamla has taken place in the premises where Rakesh was living as a tenant. The death was as a result of consumption of poison and not due to the injuries and that there is no witness of circumstances by which, it can be inferred that any of the petitioners administered the poison to the deceased. (iv) The letters regarding the love affairs between the two deceased and the suicide note of the deceased have been recovered, in which, the deceased have expressed their intention to commit suicide because of their frustration in not being able to conclude their love affairs into a permanent relationship. (v) The scribe of the letters as per the hand writing expert is Rakesh, the deceased. 13. In the backdrop of above un-disputed conclusions, this Court feels that the order taking cognizance obviously has been passed on extraneous considerations. The learned trial Judge has observed that the love letters appeared to have been got written by use of force and coercion but there is no material on the record to show that the letters were written under any influence of the petitioners. The conclusion which has been dawn by the learned trial Judge that all the petitioners collected together in Dungara Chota on 26.4.1998 then forced Rakesh and Kamla to write the letters and ultimately broke their hands and legs and caused injuries by 'gupti' is not supported by any evidence. It appears that the learned trial Judge has mechanically relied upon the statements of the witnesses recorded under Sections 200 and 202 Cr.P.C. and totally ignored the findings of the investigating agency in the detailed final report. 14. It appears that the learned trial Judge has mechanically relied upon the statements of the witnesses recorded under Sections 200 and 202 Cr.P.C. and totally ignored the findings of the investigating agency in the detailed final report. 14. In view of the aforesaid, the order of the learned Magistrate taking cognizance against the petitioners as aforesaid suffers from the vice of total non application of mind and is also based on conjectures and surmises. 15. Consequently, these misc. petitions are allowed. The order dated 15.6.1999 passed by the learned Addl. Chief Judicial Magistrate, Kushalgarh in Criminal Case No. 312/1999 arising out of F.I.R. No. 303/1998 summoning the accused in the aforesaid case for offences under Sections 302, 149 and 120-B I.P.C. and affirmed by the learned Addl. Sessions Judge, Banswara Camp Kushalgarh, Distt. Banswara by order dated 8.9.2005 passed in Revision Petitions No. 31/1999 and 5/1999 are hereby quashed and set aside. 16. The matter is remanded back to the learned Magistrate to pass a fresh order after taking into consideration all the relevant materials and legal evidence available on record and to arrive at a finding based on a proper evaluation of the material collected by the police in support of the final report and the statements of the witnesses recorded in support of the protest petition. 17. The misc. petitions as well as the stay petitions stand disposed of accordingly.Petition disposed of. *******