JAMAL SIDIQUEE Vs. STATE OF BIHAR

JUDGEMENT

(1.) Six petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of entire prosecution against the petitioners in Complaint Case No.868 of 2000/Tr. No.731 of 2000 and also for quashing of an order dated 30.7.2000 whereby Sri Alok Raj, learned Judicial Magistrate, Saran, Chapra has taken cognizance of the offence under section 436/34 of the Indian Penal Code. The petitioners have also prayed for quashing of an order dated 1.12.2000 passed by learned Magistrate in Complaint Case No.868 of 2000/Tr.No.731 of 2000. By the said order the learned Magistrate has rejected the petition filed under section 210 of the Code of Criminal Procedure on behalf of petitioner no.3 and directed for issuance of non-bailable warrant of arrest against the accused persons.

(2.) Short fact of the case is that opposite party no.2, namely, Reeta Devi filed a complaint in the court of learned Chief Judicial Magistrate, Chapra which was numbered as Complaint Case No.868 of 2000. The complaint petition was filed against all the six petitioners and one Md.Hasnain for the offence under section 436 of the Indian Penal Code. It was alleged in the complaint petition that on 15.5.2000 at about 4.A.M. in the morning the complainant noticed that 8-9 huts were put on fire. The complainant noticed that the petitioners were present there. While the complainant raised objection the accused persons who were variously armed chased the complainant. However, the complainant fled away from the place of occurrence and thereafter the present complaint was filed. After filing of the complaint petition and conducting enquiry the learned Magistrate prima facie satisfied with the materials available on the record took cognizance of the offence by its order dated 30.7.2000/31.7.2000 under Section 436/34 of the Indian Penal Code and summoned the accused persons. Instead of appearing before the court as per the order of cognizance dated 30.7.2000/31.7.2000, one of the petitioners i.e. petitioner no.3 filed an application under Section 210 of the Code of Criminal Procedure disclosing therein that for the same occurrence a first information report Vide Chapra Muffasil P.S.Case No. 177 of 2000 was lodged on 16.5.2000 and since for the same occurrence the police case was already instituted it was prayed that the proceeding in the complaint petition may be kept in abeyance till the conclusion of the investigation by the police. The learned Magistrate by its order dated 1.12.2000 rejected the petition on two grounds : firstly, it was observed that after the order accused- petitioner was required to appear before the court and without completion of appearance, no order under Section 210 of the Code of Criminal Procedure was required to be passed. It was further noticed that first information report which was lodged for the occurrence was lodged against unknown. Accordingly, the learned Magistrate rejected the petition filed under Section 210 of the Code of Criminal Procedure.

(3.) Mr. Rama Kant Sharma, learned senior counsel appearing on behalf of the petitioners, while making prayer for quashing of the entire prosecution as well as both the orders, has argued that on the basis of averments made in the complaint petition it appears that the complaint was filed falsely. It was further submitted that during investigation by the police in Chapra Muffasil P.S.Case No. 177 of 2000 it was found that one Bhagwan Rai was instrumental in creating disturbance of communal harmony and due to that reason such occurrence had taken place. It was further submitted that in the said case the police after investigation submitted chargesheet against Bhagwan Rai. It was also argued by learned counsel for the petitioners that the complainant in her complaint petition has asserted that after the occurrence the police had visited the place of occurrence but not lodged any case. Accordingly, the averments made by the complainant in the complaint petition was itself contrary to the fact made in Chapra Muffasil P.S.Case No. 177 of 2000. It was further submitted that since first information report was already lodged for the same occurrence, the learned Magistrate was required to stay the proceeding in the complaint case and as such on the aforesaid ground, he prayed to quash the entire proceeding in complaint Case no. 868 of 2000 as well as for quashing of both the orders passed by the learned Magistrate.