- (1.) A first information report of Simaria P.S. Case No. 87 of 2005 (G.R. No. 711/2005) was lodged under Section 302/34 of the Indian Penal Code and also under Section 17 C.L.A. Act, against unknown. The matter was taken up for investigation. The police, after investigation, submitted charge sheet on 07/11/2009, against four accused persons. The investigation was kept open for further investigation against the other accused persons. Subsequently, on 30/04/2010, supplementary charge sheet was submitted against Narayan Mahto showing him as absconder. So far petitioner is concerned, it was recorded that no material showing culpability of this petitioner was found. Still, the Court has taken cognizance of the offences punishable under Sections 302/34 of the Indian Penal Code and also under Section 17 C.L.A. Act, which cannot be said to be legal in view of the decision rendered in a case of "Dharam Pal versus State of Haryana [2013 (3) East. Cr.C. 307 (SC)], on the basis of which a case of Bigan Mian @ Siraj Mian versus State of Jharkhand (Cr. M.P. No. 1413 of 2008), has been decided by this Court, wherein it has been held as follows: "Thus, the position, which has emerged out is that if a case is registered for the offence/offences triable by the Court of Sessions against two or more accused persons and the charge sheet is submitted against some of them and rest are not sent up for trial, then the Magistrate does have power to take cognizance of the offence only against the person charge sheeted. However, the Court is further required to find out whether materials are there or not against the persons not sent up for trial to be taken by the Sessions Court. If the Court does find primafacie material to proceed with the trial, he needs to commit the case to the Court of Sessions. Similarly, if the charge sheet is submitted against some off the accused persons and the matter is kept open for further investigation against some of the accused persons and the Court take cognizance of the offences against the persons charge sheeted, he needs to commit the case to the Court of Sessions in terms of the provision as contained in Section 209 of the Code of Criminal Procedure. Subsequently, if the charge sheet is submitted against other accused who had not been charge sheeted earlier, some recourse is to be adopted by the Court, i.e. to find out as to whether there has been material against that person to proceed with the trial and if the Magistrate is satisfied that the materials are there, he simply needs to commit the case to the Court of Sessions and, thereby, it is for the Sessions Court to take cognizance of the offence in terms of the provision as contained in Section 193 of the Code of Criminal Procedure and to proceed with the trial."
(2.) HERE , in the instant case, as has been stated above, the Court took cognizance against the persons, who had been charge sheeted. Subsequently, on 30/04/2010, supplementary charge sheet was submitted, wherein it has been recorded that no material has been found against the petitioner, in spite of that, the Court has taken cognizance of the offence against the petitioner, though he was never required to take cognizance of the offence again when he had already taken cognizance of the offence in the case of four persons, rather the Court was supposed to find out from the materials collected as to whether there had been any material showing primafacie complicity of the petitioner and if the Court does find such matgerial, he was simply required to commit the case of the petitioner. Since, this has not been done by the Magistrate, order taking cognizance seems to be quite bad. Accordingly, the order taking cognizance is hereby quashed. However, the matter is remanded back before the Chief Judicial Magistrate, so that the Court may pass order in accordance with law, as has been indicated above.
(3.) WITH this observation, this application stands disposed of.;