MD SHAMIM ANWAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 23.11.1998 passed by Sri A.A. Gauri, learned Addl. Chief Judicial Magistrate, Shekhpura in G.R.No.291 of 1998 (Barbigha P.S. Case No.132 /98). By the said order, the learned Magistrate has refused to take cognizance of the offences in the said case and the learned court virtually had accepted the final report submitted by the police.

(2.) The short facts of the case is that the petitioner had given a written information to the Officer Incharge of Barbigha (Shekhopur Sarai ) Police Station alleging therein that on 30.4.1998, Opp.Party nos. 2 to 24 had committed theft by way of fishing the fishes from a pond which, according to the petitioner, was settled in his favour. It was also alleged that while committing offence, firings were also made. Accordingly, on the said written report of the petitioner, an F.I.R. vide Barbigha ( Shekhopur Sarai) P.S. Case No.132 of 1998 was registered on 1.5.1998 for the offences under Sections 144,447,379 of the Indian Penal Code and 27 of the Arms Act.

(3.) After registering the case, police started investigation. It appears that even during the investigation; the informant appeared before the learned Magistrate through his advocate and prayed for recording the statements of the witnesses under Section 164 of the Code of Criminal Procedure. The petition filed on behalf of the petitioner was entertained. Initially, it was prayed to examine four persons under Section 164 of the Code of Criminal Procedure. However, the petitioner produced two persons and their statements were recorded under Section 164 of the Code of Criminal Procedure. After conducting thorough investigation, the police came to the conclusion that dispute appears to be of civil in nature and, accordingly, final form was submitted by the police on 10.10.1998. From the impugned order, i.e. order dated 23.11.1998, it appears that on the point of acceptance of final form as well as for taking cognizance, argument was advanced by the parties and after hearing the parties at length, by the order dated 18.11.1998 the court fixed 23.11.1998 as the date for orders. Subsequently, on 23.11.1998, order was passed. The learned Magistrate, while refusing to take cognizance, had examined the materials available on the record and evidences collected during the investigation by the police and also examined the submissions, advanced on behalf of the petitioner, who was the informant in Barbigha(Shekhopur Sarai) P.S. Case No.132 of 1998. Before filing of the final form, a protest petition was also filed by the petitioner on 2.9.1998.