ASHOK YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed for quashing the order dated 16-4-2003 passed by the Chief Judicial Magistrate. Munger in Dharhara P. S. Case No. 8 of 2003, whereby he has taken cognizance of the offence under Sections 302 and 120B/ 34 of the Indian Penal Code and 27 of the Arms Act and directed for issuance of non-bailable warrant of arrest against the petitioners.

(2.) On the basis of a report given by one Ganesh Yadav, before the Sub-Inspector of Police, Dharhara Police Station on 7-1 -2003 at 2.30 p.m. Dharhara P. S. Case No. 8 of 2003 was registered under Sections 302 and 120B/34 of the Indian Penal Code and 27 of the Arms Act. In the First Information Report 12 persons have been shown as the accused including the petitioners and one Sanjay Mishra. Police after investigation submitted final form as contemplated under Section 173 of the Code of Criminal Procedure and although forwarded six persons for trial but six of the accused persons including the petitioners and one Sanjay Mishra were not sent up for trial. The final form submitted by the police came up for consideration before the learned Chief Judicial Magistrate and on perusal of the statements and other materials collected during the course of investigation being prima facie satisfied, by the impugned order dated 16-4-2003, took cognizance of the offence against the petitioners as also other accused persons, who were not forwarded for trial. One of them namely, Sanjay Mishra, aggrieved by the same preferred an application before this Court, which was registered as Criminal Misc. No. 16427 of 2003 (Sanjay Mishra v. State of Bihar) and this Court by order dated 1-4-2004 set aside the said order, which has also been impugned in the present application. It is stated that the said order has attained finality, as nobody has chosen to challenge the same before any superior Court.

(3.) Mr. B. P. Pandey, Senior Advocate, appearing on behalf of the petitioners contends that the very same order, which is impugned in the present application, having been quashed by this Court on an application filed by another accused, consistency demands that the said order be also quashed so far as these petitioners are concerned. In fairness to him he has not supported the principle which has been invoked in the said case to quash the order.