HAIDER ALI MUMTAJALI Vs. STATE OF M P

JUDGEMENT

(1.) HEARD Shri Umesh Maheshwari, for the petitioners. Shri A. D. Upadhyay, Panel Lawyer, for prosecution. The material which has been collected by the investigating agency against the applicant has been considered.

(2.) IT is the case of the prosecution that on 20-6-1995 at about mid night, all the applicants entered into the shop belonging to complainant Didar Ahmed and committed the theft of some of the furniture which was stored in the said shop as well as the cash which was kept in cash box. Prosecution also alleged that all the applicants committed house breaking by night, in order to commit an offence punishable with imprisonment. Prosecution also alleged that they committed the offence punishable under section 427 of Indian Penal Code by committing mischief, causing damage to the complainant above Rs. 50/ -. The FIR of complainant Didar Ahmed is dated 21-6-1995. In that FIR Didar Ahmed has alleged that Wasik Ali s/o Issac Ali and Thawar Ali s/o Haidar Ali along with four others had committed the house breaking by night for committing the theft of some of the furniture and cash which was stored in cash box. He has also alleged in the said FIR that those persons had committed the mischief and caused the damage to him which was more than Rs. 50/ -. The investigating officer carried the investigation and, thereafter charge sheet was filed against the applicants in the court of Judicial Magistrate, First Class, Badwah.

(3.) SHRI Umesh Maheshwari, counsel for the applicants argued that no case has been made out against the applicants punishable under provisions of section 380 of Indian Penal Code and, therefore, the learned Magistrate has committed the error of framing the charge against the applicants for that offence. He submitted that the charge on that count needs to be set aside. He made reference to the statements of other witnesses recorded by the investigating agency in view of provisions of section 161 of Criminal Procedure Code, 1973 (hereinafter referred to as Code ).