Rekha Kumari, J. - (1.) THIS is an application filled under Section 482 of the code of Criminal Procedure, 1973 (hereinafter referred to as the code) for quashing the order dated 23.2.2004 passed by Sri Manoj Kumar Tiwary, J.M. Ist class, Danapur in Complaint case No. 44 (C) of 2004 by which he has found a prima facie case against the petitioners to proceed with offence under Section 307 of the Indian Penal Code and has directed for insurance of (SIC) against them.
(2.) LEARNED Counsel for the petitioners submitted that with respect to the same incident another case has been filed viz. Bikram (Dulhin Bazar) P.S. Case No. 134/2003 under Sections 341, 307/34 of the India Penal Code and Section 27 of the Arms Act. The informant of the said case is one Hiralal Yadav and the case has been filed against Dudheshwar Bind alias Sidheshwar Bind and Raj Kishore Bind (who are not accused of the present complaint case). LEARNED Counsel, therefore, submitted that a when for the offence already been filed which was investigated by the police and chargesheet has also been filed against the two accused persons of the case, filling of a complaint case against the petitioners, six in number, is nothing else by an abuse of the process of the court and the order taking cognizance in the case by the learned Judicial Magistrate is illegal and the same is fit to be set aside. Learned Counsel for the complainant Mr. Rama Kant Sharma defended the order and submitted that in view of Section 210(3) of the Code, the impugned order is legal Section 210 of the Code provides a procedure when a case is filed as a complaint case; and police case in also initiated in respect of the same offence Sub-section (3) of Section 210 of the Code provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed him, in accordance with the provisions of the code. In the present case, as I stated earlier, the police case was filed against two persons who are not shown as accused in the present complaint case. Both the cases, of course, arise out of the same occurrence, but the informant and the complainant reporting the said incident are two different persons and the accused persons are also different. So, even if the chargesheet has been submitted and the cognizance has been taken on the basis of the said chargesheet, the said fact does not bar the taking of cognizance in the complaint case. Hence, so far as the impugned order is concerned, I do not find that the learned Magistrate has committed any irregularity or illegality in taking cognizance. Therefore, I do not fine any merit in this application. It is accordingly dismissed, However, it is observed that the too cases i.e. the case arising out of the chargesheet and the complaint case should be tried by the same Court. ;