SUSHIL KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioners,* learned counsel for the State and learned counsel for opposite party no. 2.

(2.) The present application under Section 482 of the Code of Criminal Proce- dure, 1973 (hereinafter referred to as the 'Code') has been filed for quashing the order dated 29.7.2008 passed by the Chief Judicial Magistrate, Samaslipur in G.R. No. 389 of 2000, C.R. No. 1227 of 2003 arising out of Samastipur (M) P.S. Case No. 130 of 2000 dated 27.3.2000 by which he has taken cognizance against the petitioners for offences under Sections 147, 148, 149, 323, 307, 302 and 120B of the Indian Penal Code and issued summons.

(3.) Learned counsel for the petitioner submits that originally the F.I.R. was lodged against unknown persons and at that time the victim was still alive and later on during the course of treatment he died at P.M.C.H. and thus Section 302 of the Indian Penal Code was subsequently added. Learned counsel submits that the informant, who is the younger brother of the deceased, had given a written statement to the police stating that he had got telephonic information that his brother has met with an accident and taken to P.M.C.H. He has categorically stated that he would give information later on when he had the same. It appears that the Police after investigation had proceeded against nine persons. Later on a complaint petition on behalf of opposite party no. 2 has been filed in the nature of a protest petition praying for taking cognizance of the remaining 8 accused persons who has not been sent up for trial, even though, according to him, sufficient materials had been produced before the police during investigation. The Chief Judicial Magistrate, Samastipur by order dated 21.8.2003 accepted the final form against the eight accused persons except the sole accused against whom charge-sheet has been submitted and it was further directed that the protest petition filed by the opposite party no. 2 shall proceed. Further, the date for solemn affirmation of opposite party no. 2 was also fixed. The opposite party no. 2 being aggrieved by the order moved this Court in Criminal Miscellaneous No. 31162 of 2003 which was disposed off by order dated 3.8.2004 where it was directed that the Magistrate should proceed with the protest petition treating the same to be a complaint and pass order in accordance with law. The opposite party no. 2 was not satisfied at this stage also and moved before the Hon'ble Apex Court in "Criminal Appeal No. 9 of 2006 which came to be disposed off by order dated 2.1.2006 in the following terms: