SAYEED BHAGAT Vs. STATE OF BIHAR

JUDGEMENT

(1.) The only question is to be decided in this case as to whether without giving any opportunity to the petitioners the revisional Court would have passed the impugned order dated 3-12-1998, by reason of which the order of the Judicial Magistrate dated 28-11-1996 has been set aside.

(2.) The facts of this case lies in a narrow compass.

(3.) On a complaint being filed by the opposite party No. 2 against nine accused persons the learned Magistrate took cognizance of the offences under Sections 323 and 379 of the Indian Penal Code and ordered for summoning four accused persons to face trial. Out of those nine accused persons, the petitioners, who were other remaining five accused persons, were not proceeded against, as no summon was issued against them. Two prosecution witnesses were examined before charge and thereafter on 8-7-1996 the opposite party No. 2, complainant, filed a petition under Section 319 of the Cr.P.C. before the Court below to summon the remaining five accused persons, who were named by those two witnesses examined before charge. The learned Magistrate refused the said prayer mainly on the ground that the allegations levelled in the petition of complaint were different than the evidence of the witnesses, there was no evidence of any Mar-pit, Gali Galauj and taking of money against the petitioners and thirdly, independent witnesses were not examined, there were previous enmity between the parties. This order of dismissal of the petition under Section 319 of the Cr.P.C. was passed on 28-11-1996, against which the complainant moved the revisional Court in Cr. Revision No. 633 of 1996.