DEOKI NANDAN PRASAD, J. - (1.) THIS application has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") for quashing the order dated 7.3.2000 passed by the Sub -Divisional Judicial Magistnite, Godda, in P.C.R. Case No. 58.5 of 1995/T.R. No. 905 of 2000 (G.R. Case No. 602 of 1998) whereby and where -under the learned Magistrate passed the order for issuance of summons against the petitioners to face the trial in the aforementioned case which was registered under Sections 302/34 of the Indian Penal Code.
(2.) THE prosecution case in brief as alleged is that the opposite party No.2 was posted as a Teacher in J.K. High School, Raj Mahal and he married his daughter Putul in the year 1989 with Binay Kumar Jha and after the marriage the mother -in -law, father -in -law and the husband started demanding money and also torturing/his daughter. His son -in -law demanding a sum of rupees twenty thousand and due to non -fulfilment of the said demand they started torturing her. It is further alleged that on 7.7.1998 at 4.30 p.m. Mr. S.N. Mishra, son of Bishun Mishra and Shashi Kant Mandal came to Raj Mahal and informed opposite party No.2 that her daughter has received some burnt injury by Stove and so he should go to Dr. P.N. Jha where she was being treated. Thereafter the opposite party No.2 came to Pathargama where he was informed that her daughter breathed her last and his son -in -law had gone for post -mortem with the police. Thereafter the first information was registered. The police investigated into the case and submitted final report which was accepted by the learned Chief Judicial Magistrate on 16.7.1999. Thereafter a protest petition was filed on 10.9.1999 in the Court of the Chief Judicial Magistrate. An inquiry under Section 202 of the Code was made but the learned Magistrate passed the order impugned for issuance of summons against the petitioners by going through the evidence collected during inquiry as well as the evidence contained in the police diary, whereas the police submitted final .report after finding and being satisfied that there is no material for issuance of summons against the petitioners. Mr. T.R. Bajaj learned Counsel appearing on behalf of the petitioners at the very outset submitted that the learned Court below committed gross error in taking cognizance of the offence against the petitioners on the face of the evidence of the diary of which the learned Magistrate is not empowered to look into the diary when the final form has already been accepted on - an inquiry made under Section 202 of the Code by the Magistrate and, therefore, the learned Magistrate should have confined his order on the basis of the materials collected during the said inquiry, but he acted without jurisdiction by relying upon the evidence of the police diary. In support of his contention, Mr. Bajaj relied upon a Division Bench judgment of the Patna High Court in Ram Kumar Pandeyv. The State of Bihar & Anr.1
(3.) OBVIOUSLY police case was registered and after investigation final report was submitted which was accepted on 16.7.1999 by the learned Chief Judicial Magistrate. It is also apparent that U.D. Case was registered for unnatural death on the basis of Sanha No. 152 dated 7.7.1999 on the application of Binay Kumar Jha, petitioner No.1 whereas the father of the deceased also lodged a First Information Report and finally the police investigated into the matter in detail and thereafter the final form was submitted finding that neither it was a case of suicide nor a case of murder rather it was an accidental death. However, a protest petition was filed as well as an inquiry under Section 202 of the Code was also made but from going through the impugned order, it is apparent that the learned Magistrate also considered the evidence of the police diary in passing the order impugned, but the Magistrate cannot look into the police papers for the purpose of summoning the accused when the Magistrate already held an inquiry under Section 202 of the Code.;