Deoki Nandan Prasad - (1.) This is an application under Section 482 of the Code of Criminal Procedure for quashing the order dated 27.6,1998 passed by the learned Chief Judicial Magistrate, Dumka in connection with Jarmundi PS. Case No. 45 of 1997 corresponding to G.R Case No. 284 of 1997 for the offence under Section 302/34 IPC as against the petitioner, whereby and whereunder the learned Court below took cognizance.
(2.) AT the very outset, the learned counsel appearing for the petitioner submitted that the petitioner has not been sent up for trial as no case was made out against the petitioner, which has duly been mentioned in the chargesheet and the name of the petitioner was shown in column no, 2, but without giving any opportunity to the petitioner or without having any protest petition, the Court below took cognizance for the offence as against the petitioner also, which is illegal and the petitioner has not been sent up for trial by the Investigating Officer finding no case made out against him. At least, he should have been noticed or he should have been heard before taking cognizance for the offence against him but that opportunity could not be given to the petitioner. It is also submitted that though a revision was filed before the Sessions Judge by the petitioner which was dismissed for non -prosecution. I find substance in the submissions of the learned counsel for the petitioner, as the petitioner was admittedly not sent up for trial finding no case made out against him and as such it was incumbent upon the learned Magistrate, before taking cognizance for the offence against him, to notice him and also give him opportunity to be heard, which could not be complied with and in that view of the matter, the Court below committed error in taking cognizance for the offence against the petitioner without any cogent reason. The order taking cognizance as against the petitioner is cryptic in nature as the evidence collected against him has not been discussed in detail. Such vague order as against the petitioner cannot be entertained in the eye of law. Only Sessions Court can summon the persons left by the Investigating Officer in the chargesheet if Session Court finds, prima facie, case against those persons as enunciated under Section 193, Cr PC as well as Section 319. Cr PC is also available for trial Court to summon those persons if there is evidence collected during trial.
(3.) FOR the reasons aforementioned, the order impugned is not sustainable, Hence, the order dated 27.6.1998, as against the petitioner only, is hereby quashed. However, it is made clear that if an accused is not sent up by the police for trial, such person does not amount to discharge in the eye of law. He can be summoned to face trial if his involvement/indulgence comes during trial by the witnesses as laid down under Section 319. Cr PC.;