The impugned order was set aside due to lack of clarity and unfair conduct of the Judicial Magistrate, in line with the decision in the case of Joy Krishna vs. State.

1. The present application filed on behalf of the petitioner is for quashing the order dated 2.8.2008 passed by Shri V.B. Tiwary, Judicial Magistrate, 1st Class, Pupri at Sitamarhi in Case No. C1-371/05, whereby and whereunder the learned Magistrate has taken cognizance against the petitioner under Section 395 of the Indian Penal Code and has issued summons for his appearance.

2. A dacoity was committed in the house of Shiv Shanker Singh, opposite party no. 2 on 6.12.2004, for which Bajpatti P.S. Case No. 147/04 came to be filed by the opposite party. During the course of dacoity one Gopal Singh was alleged to have died since a bomb was thrown at him. The narration of the events is contained in Annexure-2, the so-called F.I.R. The police registered a case under Section 396/398 of the Indian Penal Code, investigated the matter, duly supervised by the high official and found the case instituted by the opposite party no. 2, the informant of Bajpatti P.S. Case No.147/04, to be false. The police reached a conclusion that the stepbrother of the informant, namely, Gopal Singh, was killed with intention to grab his property and a final form came to be submitted on 9.4.2005.

3. During the investigation and before filing of the final form one protest petition on behalf of the opposite party dated 4.4.2005 came to be filed with a different story but with regard to the same incident. The protest petition, which is Annexure-7, was kept on record of the Court below, nothing was done on the protest petition and no steps were taken by opposite party no. 2 which is evident from the order-sheet of the Court below. One Kameshwar Singh, father of the deceased Gopal Singh also filed a case with regard to the said incident and the murder of his son, which was registered as Complaint Case No. C1-423/04, which was transferred by the Court of learned Sub- Divisional Judicial Magistrate. Pupri for in vestigation by police under Section 153 of the Cr.P.C. The complaint was registered as Bajpatti P.S. Case No.141/04 dated 2912.2004 under Sections 302 and 120B of the Indian Penal Code, in which opposite party no. 2 and others were made accused for murder of son of Kameshwar Singh as stated above. Police investigated this case and filed charge-sheet on 29.8.2005 against Shiv Shankar Singh and others under several sections of the Indian Penal Code including Explosive Substances Act and the Arms Act. The trial thereafter proceeded in the said case.

4. When the trial proceeded against the opposite party no. 2 on the case filed by the said Kameshwar Singh, yet another protest petition came to be filed on 22.9.2205, this time the basic allegations remained the same but a new or a different twist to the facts were sought to be given by opposite party no. 2. The learned Magistrate thereafter came to pass an order dated 2.8.2008 summoning the present petitioner and the other accused persons to face trial in the case of dacoity. The order, therefore, is under challenge in the present application.

5. Learned counsel representing the petitioner submits that the order passed by the learned Magistrate is out and out illegal and bad in law. He submits that the order summoning the petitioner on a second complaint is not maintainable and since there is a bar under law. There was no occasion to summon the petitioner to face trial. In this regard he relies on a decision of Calcutta High Court in the case of Joy Krishna vs. State, 1980 Cri.L.J. 482. In addition he also submits that it is a malicious prosecution which has been lodged by the opposite party no. 2 only as a defence for himself because on the complaint lodged by Kameshwar Singh the F.I.R. in question came to be registered and charge-sheet has been submitted against opposite party no. 2 to face trial. Only to muddy the water the opposite party no. 2 has filed the protest petition twice over which is at variance with the initial F.I.R. and he has tried to improve the case according to his convenience when