Birendra Singh and Others vs State and Another

S.K. Chattopadhyaya, J.—Heard learned Counsel for the parties and with their consent this application is being disposed of at the time of admission stage itself.

The only point is to be decided in this case is as to whether in view of the latest pronouncement of the Supreme Court in the case of Kishori Singh and Ors. v. The State of Bihar and Anr. reported in 2001(1) PLJ 72 the Chief Judicial Magistrate could have taken cognizance of the offences under Sections 302 and 149 of the Indian Penal Code read with Section 27 of the Arms Act and passed the order dated 26-5-2000 when uncontrovertedly the petitioners were not charge-sheeted by the Police. It is not in dispute that though the petitioners were named in the First Information Report but the Police after investigation did not file charge-sheet against them. However, the learned Magistrate after perusing the case diary and other materials on record took cognizance of the offences in a case which is exclusively triable by the Court of Sessions and issued summons to the petitioners. This order has been impugned by the petitioners in this case.

In the case of Kishori Singh and Ors. v. The State of Bihar and Anr. the Apex Court has concluded by holding that the Magistrate could not have issued process against those persons who may have been named in the F.I.R. as accused persons, but not charge-sheeted in the charge-sheet that was filed by the police u/s 173 of the Cr. P.C. The Supreme Court further has observed that so far as those persons against whom charge-sheet has not been filed, they can be arrayed as "accused persons" in exercise of power u/s 319 of the Cr. P.C. when some evidence or materials are brought on record in course of trial.

In view of the aforesaid authoritative pronouncement of the Supreme Court. I find no option but to set aside the order dated 26-5-2000, passed by the, C.J.M., Nawadah by which the petitioners have been summoned after taking cognizance of the offence. However, the Court of Sessions is not precluded from exercising its power u/s 319 of the Cr. P.C. as observed by the Supreme Court that if it is of the opinion that there are some materials on record against the petitioners.

This application is thus allowed with the above observations.