RAGHUBANS DUBEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the High Court of Judicature of Patna dismissing Criminal Revision No. 896 of 1961 filed by the appellant, Raghubans Dubey. The relevant facts for appreciating the points raised before us are as follows:

(2.) The appellant was one of the 15 persons mentioned as assailants in the First Information Report, dated July 29, 1959, lodged by one Raja Ram Shah. The police investigated the case and during the investigation the appellant set up an alibi. The police accepted the alibi and did not include his name as an accused in the final report under S. 173 of the Code of Criminal Procedure. His name was, however, mentioned in column No. 2 of the Charge Sheet under the heading 'not sent up'. On April 5, 1961, the Sub-Divisional Magistrate passed the following order:

(3.) The appellant challenged this order before the Sessions Judge. It was urged before him that the Magistrate had no jurisdiction to summon the appellant because the Sub-Divisional Magistrate had already dismissed a protest petition on merits. The Sessions Judge rejected the argument and held that it was open to the Magistrate to summon any person against whom he found sufficient evidence in the, case.