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2011 DIGILAW 2351 (PAT)

Himanshu Kumar v. State of Bihar

2011-11-25

AMARESH KUMAR LAL

body2011
JUDGMENT (ORAL) Amaresh Kumar Lal, J.- The accused petitioners have preferred this revision application against the order dated 4.06.2002 passed by the learned Judicial Magistrate, 1st Class. Patna City in Daniawan P.S. Case No.40/1995. G.R. No. 1439/1995 by which he has been pleased to find that there is sufficient material for framing of charge under Sections 147. 148. 149. 323. 448. 380 and 364 of the I.P.C. and the petitioners have been directed to appear before the Court for committing the case to the Court of Sessions 2. The main contention of the learned counsel for the petitioner is that Daniyawa P.S. Case No.40/l995 was instituted on 24.10.1995 for the offence punishable under Sections 147. 148. 149. 307. 323. 448. 380 and 364 of the I.P.C. and Section 27 of the Arms Act. After investigation, the police found the case true under Sections 323/34 of the I.P.C. and found the case false under the remaining Sections of the I.P.C. and submitted final report No. 15/ 1998 dated 21.07.1998. Protest petition was filed on 9.11.1995 and after perusal of the report and the protest petition the learned Additional Chief Judicial Magistrate. Patna City took cognizance vide order dated 16.07.2001 for the offence punishable under Sections 323/34 of the I.P.C. arid transferred the case to the Court of Judicial Magistrate for disposal in accordance with law. The petitioners appeared before the learned Judicial Magistrate and the prosecution filed a petition dated 15.04.2002 praying therein to frame charge under Sections 380 and 364 of the I.P.C. and the learned ,Judicial Magistrate by his order dated 4.06.2002 has been pleased to hold that the offence under Sections 147. 148. 323.448.364 and 380 of the I.P.C. is made out and directed the petitioner to remain physically present on 27.06:2002 for committing the case to the Court of Sessions. 3. It has been further submitted that once the cognizance has been taken by the learned Additional Chief Judicial Magistrate and the learned Judicial Magistrate has no power to review the order of taking cognizance by the learned Additional Chief Judicial Magistrate against the accused. The learned Magistrate can take note arid summon the accused only when some evidence for more offences comes during the trial. 4. The learned counsel for the State could not controvert the contention of the petitioner counsel for the petitioners. 5. The learned Magistrate can take note arid summon the accused only when some evidence for more offences comes during the trial. 4. The learned counsel for the State could not controvert the contention of the petitioner counsel for the petitioners. 5. After hearing the learned Counsel for both the parties and on perusal of the material on record, it appears that the contention of the learned counsel for the petitioners is correct. After submission of the final form, the learned Additional Chief Judicial Magistrate has already taken cognizance of the offence and thereafter, the case was transferred to the learned Judicial Magistrate for trial. Once, the cognizance has been taken, the learned Magistrate has no power to review the order passed by the learned A.C.J.M. 6. It further appears that considering all these matters, a Bench of this Court vide order dated 9.07.2002 has stayed the further proceeding of this case. 7. For the reasons aforesaid, in my opinion, the impugned order is not fit to be sustained. Accordingly, it is set aside. 8. In the result, this revision application is allowed. Revision allowed.