RAGHU NANDAN PRASAD YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Sec. 482 of the Code of Criminal Procedure has been filed to quash the order dated 2.6.2005 passed by the Chief Judicial Magistrate, Saharsa in Sour Bazaar RS. Case No. 113/2004 as well as revisional order dated 4.5.2007 passed by the Fast Track Court No. IV, Saharsa in Criminal Revision No. 238/2005 whereby the learned Additional Sessions Judge (Fast Track Court No. IV) has confirmed the order of the Chief Judi - cial Magisrate taking cognizance under Sections 366 and 376/34 of the Indian Penal Code.

(2.) HEARD learned counsel for the peti - tioner as well as the State. It appears from the record that on the basis of Fardbeyan lodged by one Tarni yadav, the police registered the aforesaid Sour Bazar RS. Case No. 113/ 2004 against one Prabhat Kumar and three unknown persons. The police after investigation submitted charge -sheet against the named accused and kept the investigation pending against some other persons. Later on, the police submitted final form against this petitioner and Tarni Yadav. However, the learned Chief Judicial Magistrate, vide order dated 2.6.2005 after going through the case diary differed from the opinion of the police and took cognizance against both of them including the petitioner. The said order has also been confirmed by the learned Fast Track Court, Saharsa.

(3.) THE main submission of learned counsel for the petitioner is that since the case is exclusively triable by the court of session and the police after investigation did not submit charge -sheet against the petitioner, the Magistrate had no power to take cognizance and issue process against the petitioner. Such person can be sum - moned only under Sec. 319 of the Code of Criminal Procedure, when in course of trial some materials are brought on record showing his complicity in the crime. For that the reliance has been placed upon a decision of the Apex Court Kishori Singh and Ors. V/s. State of Bihar and Anr., 2004 13 SCC 11.