SHIVJI SAH 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 the order dated 17.5.1999 passed by B.P.Srivastava, Judicial Magistrate, 1st Class, Sitamarhi in Majorganj P.S. Case No.60 of 1998/T.R. No.906 of 1999. By the said order the learned Magistrate has taken cognizance of the offences under sections 25(1-B), 26 and 35 of the Arms Act.

(2.) Short fact of the case is that on the basis of fardbeyan of one Badri Sah, first information report vide Majorganj P.S. Case No. 60 of 1998 was registered for the offences under sections 25(1-B), 26 and 35 of the Arms Act. It was alleged in the fardbeyan that, while he was cultivating in his field along with his nephew, the accused persons including all the petitioners arrived there. They started abusing the informant and subsequently they also assaulted them and in course of occurrence firing was also opened which hit on the right side of the chest of his nephew, Umesh Sah. Thereafter the accused persons started fleeing away but after chase one of the accused Gopal Sah could be apprehended and from his possession a country made pistol and cartridges were recovered. On the basis of the said allegation first information report was lodged. After investigation the police found accusation true against all the accused persons including the petitioners and charge sheet was submitted. After submission of charge sheet, the learned Magistrate vide order dated 17.5.1999 took cognizance of the offences under sections 25(1-B), 26 and 35 of the Arms Act and transfer the case to the court of B.P.Srivastava, Judicial Magistrate, 1st Class, Sitamarhi for trial.

(3.) Mr. M.S. Hoda, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance has firstly argued that for the same occurrence two first information reports were lodged by the police which is not permissible in the eye of law. It was argued that for the same occurrence another first information report vide Majorganj P.S. Case No.59 of 1998 was registered for the offences under sections 147, 148, 149, 523 and 323, 324 and 307 of the Indian Penal code and section 27 of the Arms Act. He has further argued that no arm was recovered from the conscious possession of petitioners, who are before this court. It was argued that arms and ammunitions were recovered form the possession of one Gopal Sah. On this ground he has argued that since nothing was recovered from the possession of these petitioners, they cannot be prosecuted in the present case and the learned Magistrate has incorrectly taken cognizance of the offences as mentioned above.