JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. On repeated calls, nobody appeared on behalf of the O.P. No. 2.

2. Heard Mr. A.K. Kashyap, learned counsel for the petitioners and Mrs. Niki Sinha, learned counsel for the State.

3. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

4. The present petition has been filed for quashing of order dated 21.04.2011 passed in G.R. No. 2338 of 2010 arising out of Haidarnagar P.S. Case No. 79 of 2010 whereby cognizance has been taken under sections 304-B/34 of the Indian Penal Code against the petitioner, pending in the Court of learned C.J.M. Palamau at Daltonganj.

5. Mr. A.K. Kashyap, learned senior counsel for the petitioners submits that full fledged enquiry was made by the police and after enquiry, final form was submitted in which no offence with regard to the petitioners has been found. He submits that charge-sheet has been submitted only against the husband of the deceased. He submits that on the protest petition, court below took cognizance against the petitioners who are brothers of the husband of the deceased. He submits that final form has already been submitted and in cryptic manner, court below took cognizance against the petitioners without appreciating as to how petitioners are involved in a case registered under section 304-B of the I.P.C.

6. Mrs. Niki Sinha, learned counsel appearing on behalf of the State fairly submits that final form has been submitted in favour of the petitioners and the court below has not appreciated this aspect of the matter how these petitioners are involved in the said crime.

7. From perusal of impugned order dated 21.04.2011, whereby cognizance under section 304-B/34 of the I.P.C. has been taken against the petitioners, it transpires that there is no reason assigned as to why court below has differed with the final form. It is well-settled provision of law that for issuing process, court is required to apply his mind.

8. In S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, (2005) 8 SCC 89, the Hon’ble Supreme Court in Para-5 has held as under:-

“5. Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words “after considering” and “the Magistrate is of opinion that there is no sufficient ground for proceeding.” These words suggest that the Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to them on the basis of the complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima-facie case to proceed. This, in other words, means that a complaint must contain material to enable the magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far-reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words “if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground of proceeding.” The words “sufficient ground for proceeding” again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed.”

9. In M/s GHCL Employees Stock Option Trust vs. M/s India Infoline Limited, (2013) 2 East Cr. C. 326 (SC), the Hon