MADHAB PRASAD MISRA Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the order dated 4 -9 -71 passed by the trial court, thereby framing a charge against petitioner No. 1 under Section 379/109, I.P.C., and against all the rest under Section 379, I.P.C.

(2.) THE allegation against petitioner Nos. 2 to 7 in short is that they dishonestly removed some Jamu (black -berry) trees belonging to the Revenue Department and standing on plots Nos. 2929 and 2930, in mouza Khandapara Garh, Against petitioner No. 1 it is alleged that he abetted the commission of theft of the said Jamu trees by the other accused persons.

(3.) IN fitness of things. I will at first take up the case of petitioner No. 1. At the outset it must be stated that the statement made by the Magistrate in the impugned order that his predecessor while taking cognizance of the matter on 25 -3 -71 appropriately considered the question of sanction and was satisfied that no such sanction was necessary to prosecute petitioner No. 1 is patently incorrect. Apart from the fact that cognizance in this case was taken, as I can see from the order sheet on 6 -4 -71 and not on 25 -3 -71, there is absolutely nothing in the order dated 6 -4 -71 that the Magistrate taking cognizance at all considered the question of sanction. That order, by which cognizance was taken, merely states that charge -sheet was received against the petitioners under Section 379/109, I.P.C. "cognizance taken", and the accused persons were summoned to appear on the next date fixed by the Court. Except stating "cognizance taken" there is absolutely nothing in the said order as to whether the above -mentioned question in any form or manner was considered, much less decided, by that Magistrate at the time of taking cognizance.