RAM NARAIN GIRI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioners, while invoking inherent jurisdiction of this Court under Sections 482 of the Code of Criminal Procedure, have prayed for quashing of order dated 7.8.1995 passed by Manoj Shrivastava, Ist Class Judicial Magistrate, Siwan in C.Case No. 550 of 1995/Tr. No. 546 of 1998. By the said order, learned Magistrate has taken cognizance of offence under Section 379 of the Indian Penal Code.

(2.) The case of complainant as appears from the materials available on record that on the date of occurrence i.e. on 17.4.1991, the accused petitioners variously armed arrived in the field of complainant and by using fire arm as well as explosive substances, the accused persons forcibly looted the wheat of the complainant. It was alleged that immediately after the said occurrence, the complainant rushed to the police, but police refused to lodge the F.I.R. Subsequently, the complainant on 20.4.1991 filed a complaint case vide Complaint Case No. 298 of 1991 against the petitioners. The said complaint was transferred by the learned Magistrate to the police for its registration and investigation under Section 156(3) of the Code of Criminal Procedure. Subsequently, when even after the direction given by the learned Magistrate, the police in connivance with the accused persons was not registering any case, the complainant was constrained to file a protest petition in the court of Chief Judicial Magistrate, Siwan, which was numbered as C550 of 1995. Only thereafter, the police registered a case vide Siwan Muffasil P.S. Case No. 110 of 1991 on 12.7.1991 for the offences under Sections 147, 148, 379, 502(2) and 3, 4, 5 of the Explosive Substance Act and Sections 25, 27 of the Arms Act. Howevedr, after investigation, the police submitted final form considering the case as untrue. The complainant had filed a protest-cum-complaint petition. It appears from the order dated 7.8.1995 passed by Shri Manoj Shrivastava, Ist Class Judicial Magistrate, Siwan in Complaint Case No. C550 of 1995 that the learned Magistrate had examined the complaint, statement of complainant recorded on S.A. and evidence of two witnesses produced in support of the complainant and by the said order, the learned Magistrate took cognizance of offence under Section 379 of the Indian Penal Code.

(3.) Shri Yogendra Prasad Sinha, learned Counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the learned Magistrate has committed grave error in taking cognizance in the matter particularly on the basis of Annexure-2. He submits that Annexure-2 is simply a protest petition and it does not contain any allegation. He further submits that in absence of disclosure of any allegation in the alleged complaint petition, the said petition cannot be termed as a complaint within the meaning of Section 2(d) of the Code of Criminal Procedure. He submits that in view of absence of any allegation, the learned Magistrate was not at all authorized to take cognizance in the present case. He further submits that the complainant and petitioners are Gotias and there were dispute in between the parties in relation to title over the land. He further submits that since regarding the title over the land, there was dispute in between the parties the allegation of theft under Section 379 of the Indian Penal Code is not applicable in the facts and circumstances of the present case. On these grounds, he has made a prayer to quash the order of cognizance in the present case.