JYOTISH PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE informant petitioner has preferred this revision application against the order dated 22nd November 2005 passed by learned Additional Sessions Judge, F.T.C. III, Bhagalpur in Cr. Revision No. 410 of 2002 by which the order dated 31st August 2002 passed by learned Chief Judicial Magistrate, Banka in complaint case no. 790 of 2002 has been set aside and the learned Magistrate has been directed to examine Yogendra Das, a witness to the occurrence.

(2.) THE prosecution case, in brief, is that on 27.6.2001 at about 7 a.m., the informant after getting information that some people were quarrelling with his father at the field, he and others went to the field and found that his father, Sadanand Singh (deceased) was lying dead in the field, his neck and head had cut injury and huge amount of blood was lying there. On enquiry, the informant could learn that while Yogendra Das was ploughing the field and his father was sitting on the ridge of the field, 5-6 miscreants came there and quarrelled with his father and by sharp cutting weapons his neck and head was injured and he was killed by them. On the fard beyan, Banka P. S. Case No. 194 of 2001 was instituted. After investigation, the police submitted final form as the occurrence true and the accusation false against the accused. THE protest petition was filed in that case which was numbered as complaint case no. 790 of 2002. Learned Magistrate proceeded with the complaint and after enquiry and examination of five witnesses the learned Chief Judicial Magistrate, Banka found a prima facie case to be true under Sections 302/34 and 120 B I.P.C. against the accused, opposite party nos. 2 to 5. Opposite party nos. 2 and 3, Rajendra Mandal and Prakash Mandal respectively, preferred Cr. Revision No. 410 of 2002 against the aforesaid order dated 31.8.2002. THE revision application was heard by learned Additional Sessions Judge, who had passed the impugned order setting aside the order dated 31.8.2002 and the case was remanded to the learned Magistrate to follow the direction of Hon?ble Supreme Court reported in 1998 SCC (Cr.) 1400 and to examine Yogendra Das and, thereafter, pass order either under Section 203 or 204 of Cr.P.C.

(3.) CONSIDERING the facts and circumstances of the case and in view of the decisions; in the case of Daroga Choudhary (supra) and in the case of Shivjee Singh (supra), the impugned order is not fit to be sustained. The impugned order is set aside. The order dated 31.8.2002 passed by learned Chief Judicial Magistrate, Banka in Complaint Case No. 790 of 2002 is restored. Learned Magistrate will proceed with the case in accordance with law. 8. In the result, this revision application is allowed.