AKBAR KHAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Two 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 20.4.1999 passed by Sri B.N.Tiwari, Judicial Magistrate, Siwan in Complaint Case No.C-341 of 1999/T.R. No.886 of 1999. By the said order the learned Magistrate, has taken cognizance for the offences under sections 341 and 392 of the Indian Penal Code.

(2.) Short fact of the case is that opposite party no.2 filed a complaint vide Complaint Case No.C-341 of 1999 alleging therein that on the date of occurrence and time i.e. 22.3.1999 at about 6.30 P.M., while he was returning home, he was intercepted by the petitioners and 3-4 unknown persons. The complainant was put in fear and one of the accused took out a knife and put the same on the neck of the complainant and thereafter by force firstly took Rs.2,200/- (rupees two thousand two hundred) from his pocket as well as a wrist watch was taken by the accused persons. It was said by the accused persons that the complainant had earned huge money from Dubai. In the said occurrence, as alleged in the complaint petition, the complainant was brutally assaulted by fists by the accused persons. In the complaint petition it was also disclosed that on earlier occasion also the complainant was assaulted by the accused persons for which he had lodged information in the police station and thereafter a proceeding under section 107 of the Code of Criminal Procedure was initiated. After filing of the complaint petition, the complainant was examined on solemn affirmation and in support of the complaint three witnesses were examined as enquiry witnesses. After completion of enquiry, the learned Magistrate by its order dated 20.4.1999 took cognizance of the offences under section 341 and 392 of the Indian Penal Code. Of course, against the order of cognizance the petitioner preferred a revision before the court of learned Sessions Judge, Siwan and that revision was rejected by the learned Additional Sessions Judge, Siwan, neither learned counsel for the petitioners has orally submitted for quashing of the order of rejection of the revision petition nor in paragraph-1 of the petition the petitioners have made a statement for quashing of the revisional order.

(3.) Mr.Shailendra Kumar Singh, learned counsel for the petitioners, while challenging the order of cognizance, submits that the order impugned is liable to be set aside on the ground that prosecution has been initiated by the opposite party no.2 maliciously. He submits that in the complaint petition it has been admitted that even prior to the filing of the present complaint petition, litigation in between the petitioners and the complainant was going on. He further submits that without any material the learned Magistrate has incorrectly taken cognizance of the offences. Learned counsel, while referring to the judgment of Honble Supreme Court reported in A.I.R. 1998 S.C.128 (M/s Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and Others) and 2002 (1) SCC 241 (S.W.Palanitkar & Others Vs. State of Bihar & Another), submits that summoning of an accused is a serious matter and, as such, before passing the order or summoning the petitioners, the learned Magistrate was required to examine the materials available on the record and after being fully satisfied with the commission of offence, the learned Magistrate was required to pass an order of cognizance and directed for issuance of summons. According to the learned counsel for the petitioners, no offence is made out and, as such, he has prayed for quashing of the order of cognizance.