RAM SWARATH YADAV Vs. RAJESHWAR PRASAD SINHA

JUDGEMENT

(1.) This application has been filed for quashing the cognizance taken under Sections 166, 427, 504 and 580 of the Penal Code and summoning the petitioners to face trial.

(2.) The opposite party no. 1 filed a petition of complaint in the court of the Chief Judicial Magistrate, Patna, stating therein, inter alia, that petitioner no. 1, who was officer-in-charge of a police station filed requisition for issuance of warrant of arrest as well as processes against one Rakesh alias Babloo son of the complainant and the court passed an order issuing processes against the aforesaid person. On 18-1-1989 for execution of the processes under Sections 82 and 83 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' the petitioner no. 1 and petitioner no. 2 (sub-Inspector of Police) are said to have entered the house of the complainant forcibly after breaking open the door armed with weapons. The complainant having learnt about the said order got records of criminal case, in which processes were issued, inspected and the court directed the complainant's son who is an accused in that case to surrender. The complainant's son thereafter surrendered in court and upon his surrender the court passed an order for staying execution of the processes. The petitioners obtained a copy of the order and went to his house to serve the same upon the accused persons. It is said that the accused persons did not receive the court's order which was produced by the complainant and inspite of the stay order, in execution of the processes issued under Sections 82 and 83 of the Code, the accused persons had taken out various articles from the house of the complainant abusing him, which necessitated filing of the present complaint, upon which the learned Magistrate after examination of the complainant on solemn affirmation and holding enquiry under Section 202 of the Code took cognizance and summoned the petitioners to face trial. Hence this application for quashing the prosecution.

(3.) Learned counsel appearing on behalf of the petitioners submitted that order taking cognizance is fit to be quashed as the cognizance was barred under Section 197 (2) read with Section 197 (3) of the Code which run thus :