Narayan Roy, J.
1. Heard counsel for the parties.
2. The petitioner prays for quashing the order dated 3-3-2002 passed by the learned Chief Judicial Magistrate, Gopalganj whereby and whereunder the learned Magistrate has taken cognizance of the offence under Sections 302 and 120B/34 of the Indian Penal Code arising out of Mirganj P. S. Case No. 340/2001.
3. Learned counsel for the petitioner submitted that in course of investigation no material whatsoever was found against the petitioner and, therefore, a petition was filed by the petitioner for his discharge and the learned Magistrate heard the petition filed by the petitioner and discharged him vide order dated 6-2-2002 and, therefore, the learned Magistrate committed jurisdictional error in taking cognizance of the offence against the petitioner on 3-3-2002. It is further submitted that the learned Magistrate had no inherent power to review/recall his previous order dated 6-2-2002 and at the face of the order of discharge dated 6-2-2002, the learned Magistrate had no jurisdiction to take cognizance of the offence.
4. In order to appreciate the question raised by the learned Counsel for the petitioner, relevant facts are required to be noticed. From the lower court record which was called for on 2-4-2003, it appears' that Mirganj P.S. Case No. 340/2001 under Sections 302, 341, 120B of the Indian Penal Code read with Section 3/4 of the Explosive Substances Act was registered against the petitioner and other accused persons. The police forwarded the accused persons with the first information report before, the learned Chief Judicial Magistrate, Gopalganj on 5-12-2001 and the learned Magistrate remanded the accused persons including the petitioner to judicial custody till 18-12-2001. On 15-1-2002 a bail petition was filed by petitioner, Heera Lal Pandit alias Hira Lal alias Heera Lal Singh before the learned Magistrate which was heard on 16-1-2002 and his prayer for bail was rejected. The petitioner thereafter applied for bail before the learned Sessions Judge, Gopalganj which was heard on 24-1-2002 and prayer of the petitioner for grant of bail was rejected. On 29-1-2002, petitioner, Heera Lal Pandit alias Hira Lal alias Heera Lal Singh, filed a petition before the learned Chief Judicial Magistrate Gopalganj making a prayer for his release as in course of supervision of the case he was found innocent. The petition dated 29-1-2002 was pressed for hearing on 6-2-2002 and the learned Magistrate after hearing learned counsel for the petitioner and also learned Assistant Public Prosecutor, passed an order of release of the petitioner as in course of the supervision, the Superintendent of Police found him innocent. On 3-3-2002, the police submitted chargesheet against the accused persons including the petitioner in the court of the Chief Judicial Magistrate and the learned Chief Judicial Magistrate vide order dated 3-3-2002 took cognizance of the offence against the named accused in the charge-sheet including the petitioner and transferred the case to the Court of Sri Rajesh , Kumar, Judicial Magistrate, 1st Class, Gopalganj for commitment of the case as the case was exclusively triable by the Court of Session,
5. From the facts, as enumerated above, and the records of the case, it appears that till 6-2-2002 final form was not submitted by the police and investigation was pending and ultimately, chargesheet was filed by the police against the accused persons including the petitioner on 3-3-2002. From the order dated 6-2-2002 whereby and whereunder the petitioner was released/discharged, it appears that till that date only the petition filed by the petitioner for his release/discharge along with photo-stat copy of the supervision note of the Superintendent of Police was available on the record and subsequently, chargesheet was submitted on 3-3-2002.
6. Now the question arises as to whether the learned Magistrate had jurisdiction to pass an order of release/discharge of the petitioner before submission of the final form.
7. Section 156 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') empowers the police officer to investigate cognizable cases for which information relating to commission of cognizable offence is given to the police. Section 169 of the Code speaks about the release of an accused when evidence is not sufficient. However, this section contemplates that if, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, directing the accused to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. Section 170 of the Code empowers the police officer to forward accused under custody to a Magistrate empowered to take cognizance if upon an investigation under this Chapter, the police finds sufficient evidence or reasonable ground. It further empowers the police to release an accused in case the offence is bailable directing the accused to attend the case day to day before such Magistrate until otherwise directed.
8. In the case at hand, the police having found sufficient evidence and reasonable grounds in course of investigation forwarded the accused persons under custody to the Chief Judicial Magistrate. Gopalganj, who was empowered to take cognizance of the offence and try the same.
9. Section 173 of the Code speaks about the submission of the report by the police after completion of investigation and in the instant, case, it appears that the police after completion of the investigation filed chargesheet in the court of the learned Chief Judicial Magistrate, Gopalganj sending up the accused persons including the petitioner to face the trial and the learned Magistrate thereupon took cognizance of the offence against, the petitioner and other accused persons in exercise of his power under Sub-section (1) (b) of Section 190 of the Code vide order dated 3-3-2002.
10. From the facts, as noticed above, it appears that the petitioner along with other persons was made accused under Sections 302 and 120B of the Indian Penal Code and they were forwarded to the learned Magistrate on 5-12-2001 and on the same day, the learned Magistrate remanded the accused persons including the petitioner to judicial custody and ultimately, the prayer of the petitioner for grant of bail was rejected by the learned Magistrate on 16-1-2002 and again his prayer for bail was rejected by the learned Sessions Judge on 24-1-2002 and ultimately, the police submitted chargesheet: against the petitioner and other accused persons in the Court of the Chief Judicial Magistrate upon which cognizance of the offence was taken on 3-3-2002. On scrutiny of the provisions laid down under the Code, I do not find any such provision empowering the Magistrate to release/discharge an accused before submission of the final form and taking cognizance of the offence.
11. Here, in the instant case, it appears that during the pendency of investigation of the case, the petitioner applied for his release as the Superintendent of Police in the supervision note found him innocent and the learned Magistrate allowed the prayer of the petitioner and released him from custody and subsequently, on submission of chargesheet against the petitioner and other accused persons, the learned Magistrate took cognizance of the offence. The procedure adopted by the learned Magistrate, in the given facts and circumstances of the case, is completely unknown to law and the order of release of the acccused petitioner vide order dated 6-2-2002 must be held to be wholly without jurisdiction and non est in law and it is, accordingly, set aside. The order taking cognizance dated 3-3-2002, therefore, must be held to be well within the jurisdiction of the learned Magistrate as he was competent to take cognizance of the offence upon a police report under Section 190(1)(b) of the Code.
12. The submission of the learned counsel for the petitioner that the learned Magistrate had no inherent power to recall the order dated 6-2-2002, therefore, appears to be wholly misconceived. Since the order dated 6-2-2002 has been held to be non est in law, no question arises to recall such order and the order taking cognizance on that score cannot be allowed to be assailed.
13. For the reasons aforementioned, I do not find any merit in this application.
14. In the result, this application is dismissed.
15. The petitioner is directed to be arrested and put back to custody forthwith.