JUDGMENT :

Heard Mr. Anil Kumar Sinha, learned senior counsel for petitioners, Mr. Sunil Kumar Dubey, learned counsel for the State and Mr. Kaushik Sarkhel, learned counsel for the O.P. No. 2.

2. This petition has been filed for quashing of order taking cognizance dated 03.11.2009, passed in Bishrampur P.S. Case No. 80 of 2003, corresponding to G.R. Case No. 1500 of 2003, by the learned Chief Judicial Magistrate, Daltonganj whereby cognizance has been taken under sections 302/34 of the I.P.C. and under section 27 of the Arms Act, pending in the Court of learned Chief Judicial Magistrate, Daltonganj, Palamau.

3. On the basis of fardbeyan of deceased-Dhananjay Singh F.I.R. has been lodged alleging therein that on 10.11.2003 at about 7.30 P.M. the informant along with other co villagers Narmdeshwar Singh, Keshaw Singh, Jasbir Singh, Ramjee Singh, Sanjay Kumar Singh were sitting upon the culvert near Mango tree of the village and they were talking. Thereafter all other co-villagers were gone to their house at about 8 P.M. and only the informant Dhananjay Singh and Sanjay Singh were left there in course ofgoing of their house. At the same time four persons of the same village namely, Ramakant Singh, Suresh Singh both sons of Ramswarup Singh, Rajkamal Singh, son of Ramakant Singh and one Gupteshwar Singh, son of late Ramsharik Singh came from the nearby bushes and asked who are you. Then the informant replied and accordingly, Ramakaant Singh ordered for firing then Gupteshwar Singh fired upon the informant and accordingly, he sustained bullet injury on his left hand and accordingly he fell down. Thereafter, Suresh Singh said to Rajkamal Singh to fire but no injury received by the informant or Sanjay Singh. Thereafter Sanjay Singh had raised alarm and thereafter the other villagers came there and thereafter one commander jeep was arranged from the village and thereafter proceeded to Sadar Hospital at Daltonganj.

It was further alleged that Ramakant Singh ordered Gupteshwar Singh to fire upon Dhananjay Singh accordingly, he sustained got shot injury on his left hand and Suresh Singh ordered Rajkamal Singh to fire upon but the same was not hit any one, with an intention to kill him.

On the basis of above statement, the F.I.R. was registered under sections 326, 307 & 34 of the I.P.C. and later on section 302 I.P.C. was added.

4. Mr. Anil Kumar Sinha, learned counsel for the petitioners submits that initially the police has investigated this case and final form has bene submitted in which the accused persons were chargesheeted including the petitioners. He further submits that C.I.D. has taken over the matter and thereafter had investigated the case. He further submits that C.I.D. has filed petition before the learned court which was considered vide order dated 29.11.2006and pursuant to that the learned court has granted permission to re-investigate the matter by the C.I.D. He further submits that C.I.D. has submitted final form wherein the petitioners have not been sent up for trial however, against one Gupteshwar Singh final form is there and accordingly, the learned court has been pleased to take cognizance by order dated 09.04.2009. He further submits that in that order it has been recorded that rest of the accused persons have not been sent up for trial. He further submits that thereafter protest petition was filed by the father of the informant and pursuant to that the petitioners have been called by the learned court by order 03.11.2009. He submits that this is in violation of mandatory provision of section 200 and 202 of Cr.P.C. He further submits that once the protest petition is filed it is required to be treated as complaint and the cognizance based on that protest petition must be in terms of section 200 and 202 Cr.P.C. To buttress his argument he relied in the case of "Vishnu Kumar Tiwari V. State of Uttar Pradesh through Secretary, Home Civil Secretariat Lucknow and Another, (2019) 8 SCC 27 wherein para 42, 43 and 44 the Hon'ble