Arun Kumar, J. – Counter affidavit has been filed on behalf of the opposite party No. 2 in the Court today. Let it be kept on record.

2. Heard learned Counsel for the petitioners, learned Counsel for the opposite party No. 2 as well as learned Additional Public Prosecutor for the State.

3. The petitioners seek quashing of the order, dated 15.05.2014, passed by the learned Sessions Judge, Samastipur, in Cr. Revision No. 523 of 2009, whereby, he allowed the criminal revision application filed by the informant of the case for examining the four witnesses, neither named in the charge-sheet by the police nor ever their statements have been recorded by the police under Section 161 of the Code of Criminal Procedure (in short ‘the Cr.P.C.’).

4. The brief fact giving rise to the case is that the opposite party No. 2, the informant, filed Samastipur Town P.S. Case No. 690 of 2007 against the accused persons, who are petitioners herein, registered under Sections 341, 323, 324 and 307/34 of the Indian Penal Code, alleging therein that when he went over his plot (details of which have been mentioned in the First Information Report) found that the accused persons constructing a house on the same land. The informant objected, being enraged the accused persons, Bhushan Prasad Nayak, one of the accused, inflicted a knife blow hitting left hand and neck of the informant and another accused person, namely, Bipin Prasad Nayak, snatched wrist watch of the informant and Rs. 350/- from his pocket.

5. On completion of the investigation, the police submitted final form on 14.01.2008, finding the case to be false. On the same day, a protest petition was also filed by the informant. However, the learned Chief Judicial Magistrate took cognizance of the offence, disagreeing with the police report. In the police report, the names of the five witnesses find place and during the trial all the five witnesses were examined. However, thereafter, a petition was filed by the informant to examine the four other witnesses and the same was rejected by the learned trial Court against which the informant preferred a revision application and the same was allowed by the impugned order, dated 15.05.2014.

6. Learned Counsel, appearing on behalf of the petitioners, submits that admittedly there is a land dispute between the parties and due to enmity, this false case was lodged and the police, finding it not true, submitted final form. However, the learned Magistrate has taken cognizance. The witnesses proposed to be examined by the informant were never examined by the police during course of investigation and their statements have not been recorded under Section 161 of the Cr.P.C. Moreover, the informant never made any protest before the police authorities or the supervising authority of the investigation that statement of eye-witnesses were not recorded by the Investigating Officer. Only after submission of the final report by the police, a protest petition was filed naming them as witnesses. These witnesses are tutored witnesses and the trial has not proceeded on a complaint case rather on the basis of the investigation, done by the police. These witnesses were never examined during investigation. So the case of the defence will be prejudiced and there is no availability of their earlier statements made before police to cross-examine or to test the veracity of their statements.

7. Learned Counsel, appearing on behalf of the petitioners, has placed reliance on a decision in case of Bipin Kumar vs. State of Bihar, reported in 2009 (1) East. Criminal Cases 310, in order to submit that similar was the circumstance in that case and so the Court directed the trial Court to examine the case diary, rather in that case, on the basis of complaint after submission of final form, the police had taken cognizance. In case of Bipin Kumar (supra), the Court directed to examine whether the witnesses, named by the complainant in the complaint petition, were examined by the police in course of i