AKCHHAY KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This quashing application has been filed seeking quashing of the order of cognizance dated 05.09.1994 in Piro P.S. Case No. 83 of 1992 arising out of complaint filed by Rabindra Binder Singh Yadav, Opposite party No. 2 of this application.

(2.) Petitioner's lawyer submitted that there was also a counter -version of the occurrence in which cognizance was taken and after due trial, Opposite party No. 2 and others were convicted so the complaint filed by Opposite Party No. 2 was an afterthought making wild and baseless allegations and, moreover, there was earlier investigation by the police which ended in final report and subsequently, there was protest and there was inquiry under Section 202, Cr.P.C. on the basis of which cognizance was taken and the impugned order was passed. As already there was an order of conviction so the case filed by the petitioner was, perhaps, genuine and the case filed by Opposite party No. 2 was frivolous and malicious, hence, the cognizance order was bad.

(3.) However, the settled position of law is that even if investigation by the Police ends in final report, there is no bar to proceedings under Section 202, Cr.P.C. on the basis of the complaint -cum -Protest. There is also no bar to taken cognizance on the basis of the result of the inquiry. So the order of cognizance will not suffer from any illegality on this ground. So far the fact that there was another of conviction relating to Opposite party No. 2 and others, it has been submitted by the O.P.s lawyer that the judgment of conviction is pending in this High Court in appeal so apparently there is no finality of the judgment of conviction passed against Opposite party No. 2 and others. Apparently, both the parties are alleging the charge of murder against each other relating to the same occurrence in which two persons were killed which of the versions, is correct cannot be decided at this stage in this quashing application even though there has been a judgment of conviction by the trial Court which is not yet final. Facts alleged and facts disputed cannot also be decided by this Court in this quashing application.