NAJEEBUDDIN AHMAD 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 12.10.1998 passed by Shri M.M. Siddique, Judicial Magistrate, Katihar in Complaint Case No.829 of 1999. By the said order, the learned Magistrate has taken cognizance of the offences under Sections 323, 348 and 380 of the Indian Penal Code.

(2.) Short fact of the case is that the opposite party no.2 filed a complaint vide Complaint Case No.829 of 1999 disclosing therein that some dispute regarding Bataidari appertaining to Plot No.602, Khata No.443 was continuing in between the complainant and this petitioner. It was alleged that on the date of occurrence i.e. 18.5.1999 at about 9 A.M., the accused persons, namely, Khalil Khan and Qaiyum Khan forcibly entered into the house of the complainant and thereafter, they said that against his Malik (landlord), why he has filed cases and thereafter, they assaulted the complainant. It was alleged in the complaint petition that accused persons during the occurrence were saying that they will forcibly take away the papers relating to the cases and, thereafter, they forcibly took a box in which the papers/documents of cases were kept. On the aforesaid allegation, the complaint was filed. After filing the complaint, the complainant was examined on S.A. In support of the complaint, two witnesses were examined as enquiry witnesses, who supported the complainants case. After examining the materials available on the record by order dated 12.10.1999, after being satisfied that prima facie case under Sections 323, 448 and 380 of the Indian Penal Code was made out, the Magistrate took cognizance of the offences and directed for issuance of processes for securing the attendance of the accused person.

(3.) Mr. Raghib Ahsan, learned Senior Counsel appearing on behalf of the petitioner, while challenging the order of cognizance, submits that, on perusal of the entire complaint petition, no offence is made out against the petitioner. He submits that in this case, allegation was that two accused persons assaulted the complainant during the occurrence and thereafter, the said two accused persons had committed the crime of forcibly taking away the box containing papers relating to the cases. Of course, in the complaint petition, it was asserted that the accused persons had threatened the complainant as to why he had instituted the case against his Malik (landlord). In the complaint petition, there was no whisper that this petitioner was present at the place of occurrence. Learned counsel for the petitioner further submits that the complainant had not made out a case that this petitioner had hatched conspiracy and directed the accused persons to commit the crime. Learned counsel for the petitioner, in course of argument, has produced photo copy of the certified copy of the depositions of two enquiry witnesses as well as statement of the complainant recorded on solemn affirmation. While placing the entire materials, learned counsel submits that not even single word was asserted by any of the witnesses or the complainant that this petitioner was present at the time of occurrence or he had hatched conspiracy for committing the crime. He submits that in absence of any such assertion it was not proper for the learned Magistrate to proceed against this petitioner by way of taking cognizance and to direct for issuance of processes for securing his attendance. He further submits that order of cognizance also does not indicate that the learned Magistrate has taken cognizance of the offence under section 120B of the Indian Penal Code. Accordingly, he has prayed for quashing of the order of cognizance.