PRASHANT KUMAR, J. - (1.) THIS application has been filed for quashing the order dated 03.09.2013 passed by learned Civil Judge -cum - Chief Judicial Magistrate, Chatra in Sadar P.S.case No. 105/2013 corresponding to G.R.No.505/2013, whereby and where under, learned court below took cognizance of offence against the accused persons including the petitioners under sections 302/34 of the Indian Penal Code.
(2.) THE facts of the case for the purpose of disposal of this case lie in a narrow compass: The informant Puniya Devi has alleged that on 08.06.2013, his son Dinesh Prajapati @ Dawlu was killed by Aditya Prajapati @ Lattu Prajapat, Madan Prajapati and Santosh Prajapati ( petitioner no.2) on the instigation of Geniya Devi. Accordingly, police instituted Sadar Chatra P.S.Case No. 105/2013 dated 09.06.2013, under sections 302/34 of the Indian Penal Code against the aforesaid four accused persons and took up investigation.
(3.) IT appears that after completing the investigation, police submitted charge sheet only against Aditya Prajapati @ Lattu Prajapati and Madan Prajapati. In the said charge -sheet petitioners were not sent up for trial. It further appears that aforesaid charge -sheet received in the court of learned Chief Judicial Magistrate, Chatra on 03.09.2013, who after going through the materials collected during the investigation, differs from the findings of the Investigating Officer and came to the conclusion that prima facie offence under section 302/34 I.P.C. made out against all the four accused persons, namely, Geniya Devi, Aditya Prajapati, Madan Prajapati and Santosh Prajapati, accordingly, he took cognizance of the offence against them. In this case, petitioners challenged aforesaid order of learned Chief Judicial Magistrate, Chatra. It is submitted by learned counsel for the petitioners that petitioners were not charge -sheeted. It is further submitted that charge -sheet submitted only against two co -accused under sections 302/34 of the Indian Penal Code. Thus, the learned Chief Judicial Magistrate,Chatra has no power to take cognizance of the offence against the petitioners. It is submitted that if the learned Magistrate prima facie finds that there are material to proceed against the petitioners then he is required to commit the case to the Court of sessions and it is for the court of Sessions to take cognizance against them.;