KUSH KUMAR ALIAS KUSHWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code') is directed against the judgment dated 16.2.1996 passed by the Additional Sessions Judge -V, Patna in Criminal Revision No. 445/95 by which he was pleased to set aside the order dated 25.7.1995 passed by Shri S. K. Srivastava, Judicial Magistrate 1st Class, Patna in Complaint Case No. 553 (C)/1995 by which the learned Magistrate was pleased to take cognizance of the offence against the opposite party nos. 2 to 6 (the accused in the complaint case before him).

(2.) FROM the record it appears that the present petitioner had filed the aforesaid case before the Chief Judicial Magistrate, Patna on 4.7.1995 who transferred the said case under section 192 of the Code to the court of Judicial Magistrate named above for enquiry and trial. Before the Judicial Magistrate the statement on oath of the present petitioner was recorded and in the course of enquiry under section 202 of the Code two witnesses were examined. Subsequently some documents were also filed and after completing the enquiry under section 202 of the Code the learned Magistrate finding sufficient evidence; by his order dated 25.7.1995 directed for the issue of summons against opposite party nos. 2 to 9. Against the aforesaid order opposite party nos. 2 to 9. filed criminal revision before the learned Sessions Judge (Cr. Revision No. 445/95) which was transferred to the court of the learned Additional Sessions Judge -V, Patna who by the impugned order was pleased to set aside the order taking cognizance of the offence by the learned Judicial Magistrate.

(3.) 7.1995 passed by the learned Additional Chief Judicial Magistrate. The learned Additional Sessions Judge has wrongly observed in the impugned judgment that the order passed by the learned Judicial Magistrate was arbitrary and capricious and passed on inadmissible and irrelevant materials. The learned Addl. Sessions Judge has wrongly and illegally rejected the submission of this petitioner made before him. On these grounds amongst others it has been contended that the impugned judgment be set aside and the order passed by the learned Judicial Magistrate be restored. 4. I have heard the parties in detail. On behalf of the opposite party the first objection raised against this criminal revision is that it is not maintainable inasmuch as it is the second revision application filed against the order of the learned Judicial Magistrate for the issue of summons to the accused persons (opposite party nos. 2 to 9). It was the submission of the learned counsel for the opposite party that though technically the petitioner has come against the order , of the Additional Sessions Judge and not against the order of the learned Judicial Magistrate in effect if it is the order of the learned Judicial Magistrate which is under challenge and, therefore, it has been contended that under the facts and circumstances of this case second revision application will not lie.