1. In the instant writ application the petitioner has prayed for quashing the order dated 2.9.2006 passed by the learned C.J.M., Siwan in Complaint Case No. 82 of 2006 arising out of protest-cum-complaint petition, whereby the learned Chief Judicial Magistrate, Siwan was pleased to take cognizance of offence under Section 302/34 of the I.P.C. and Section 27 of the Arms Act and summoned the petitioner to face trial. He further prayed for a declaration that the order dated 2.9.2006 passed by the C.J.M. in Complaint Case No. 82/06 arising out of protest-cum-complaint petition is in contravention of the proviso to Section 202(2) of the Cr.P.C.

2. Before I proceed to examine the aforesaid provision it would be necessary to give the facts of this case in brief. The informant Ram Ekbal Rai (Respondent No. 4) alleged that on 1.11.1999 at about 1 P.M. while he was talking with his co-villager Janardan Rai, Ram Ji Rai and Jai Mangal Rai at his door one Sudama Singh, Praduman Rai, Pramod Rai having gun in theirs hands arrived there alongwith Manan Rai. Praduman Rai inquired from the informant, the whereabouts of Munna Rai. The informant replied that he was inside the house. In the meantime as Munna Rai came out of his house, accused Sudama Singh and Manan Rai exhorted to kill Munna Rai, upon which Praduman Rai fired twice at Munna Rai injuring him. Munna Rai fell to the ground, whereupon co-accused Pramod Rai also fired a shot at him. The informant raised halla in despair, whereafter the accused persons fled away. The injured Munna Rai was being carried to Raghunathpur Hospital on a jeep but in the way he died.

3. On the basis of fardbeyan of respondent no. 4, Raghunathpur P.S. Case No. 71 of 1999 dated 15.11.1999 under Section 302/34 of I.P.C. was registered.

4. The police after investigation submitted charge-sheet against accused Manan Rai and Pramod Rai, and found accusations against the petitioner and one co-accused Sudama Singh to be false. The informant filed a protest petition before the C.J.M., Siwan alleging investigation to be collusive and unfair.

5. The learned C.J.M., Siwan, by his order dated 1.8.2001 contained in Annexure-3 took cognizance and issued summons against two charge-sheeted accused only. In other words the Magistrate accepted the final form and did not summon the petitioner and Sudama Singh to face trial. The informant filed criminal revision no. 782 of 2001 against aforesaid order dated 1.8.2001 as the Court did not take cognizance against petitioner and another, who were not sent up for trial. The informant succeeded in revision in this Court and a Bench of this Court vide order dated 15.1.2002 set aside the order taking cognizance and remitted the matter back to the C.J.M., Siwan for fresh consideration. The learned C.J.M., Siwan vide order dated 14.3.2002 contained in Annexure-7 declined to take cognizance of offence against the petitioner. The informant filed Cri. Misc. No. 20941 of 2002, challenging the order dated 14.3.2002 contained in Annexure-5, passed by the C.J.M., Siwan. A Bench of this Court vide order dated 9.9.2004 quashed the order dated 14.3.2002 of learned Magistrate and directed him to proceed against all the accused persons, if involvement appears from the case diary.

6. The petitioner moved the Hon ble Supreme Court against the aforesaid order dated 9.9.2004 vide Cri. Appeal No. 1660 of 2005, and the Apex Court vide order dated 12.12.2005, as contained in Annexure-7, modified the order of the High Court and directed the Magistrate to treat the protest petition filed by complainant as complaint, and proceed further in accordance with law. As such the protest petition filed by the informant way back on 29.11.99 consequent to the order of the Hon ble Supreme Court was registered as Complaint Case No. 82 of 2006. The complainant therein had named Janardan Rai, Ramji Rai, and Jai Mangal Rai as his three witnesses, and others, who may be examined, in course of inquiry under Section 202 of