MD NIZAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) RAKESH Kumar The sole petitioner, while invoking inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 12.01.2000 passed by Judicial Magistrate, Ist Class, Muzaffarpur in Complaint Case No. 1136 of 1998/ Tr. No. 1121 of 2000. By the said order the learned magistrate has taken cognizance of the offence under sections 182 and 211 of the Indian penal Code and directed for summoning the petitioner.

(2.) SHORT fact of the case is that on 24.12.1997, Sub Inspector of Police recorded Fardbeyan of the petitioner wherein he disclosed that on 05.12.1997 suddenly opposite party nos. 2 ot 5 came at the door of the petitioner and while abusing him they told to remove the wall from the land, which was replied by the petitioner in negative. Thereafter they tried to demolish the wall. However, on intervention of Sarpanch the matter was cooled down but the accused persons after threatening the petitioner returned back. Subsequently, on 09.12.1997 at about nine hours all the accused persons (opposite party nos. 2 to 5) came to his door and from the back portion they entered into the courtyard of the informant and they inflamed the straw hut which was in the courtyard of the petitioner. On alarm being raised by the petitioner, mother of the petitioner as well as other villagers arrived there and the accused persons, thereafter, fled away. In the said fire the petitioner suffered a loss of Rs. 2,000/-. Due to fear of the accused persons he did not go to the O.P. The reason for occurrence between the petitioner and the accused person was old dispute. The petitioner further disclosed that he had sent an application to the Superintendent of Police, Muzaffarpur regarding the occurrence, whereupon the Police had came to the informant. The said Ferdbeyan was recorded at the door of the petitioner.

(3.) BESIDES hearing learned counsel for the petitioner and the State, I have also perused the materials available on the record. After going through the materials on record, it is evident that earlier the complaint petition filed by the petitioner after enquiry was rejected by the learned Sub. Divisional Judicial Magistrate (West) Muzaffarpur by its order dated 9.12.1999. The said order was basically passed on the basis of materials available in the case dairy. In the present case in which the petitioner being informant had filed a protest petition and the said protest petition was subsequently treated as Complaint Case No.1136 of 1998. However, the said order dated 9.12.1999 was quashed by this court in Cr.Revision No.25 of 2000 by order dated 20.9.2000 and the matter was remitted back to the learned Magistrate for passing a fresh order on the basis of materials in the complaint case. The learned Magistrate again oblivious of the fact that he was required to pass an order on the basis of materials in the complaint case again entertained a petition filed by accused person of the complaint case and also entertained the report submitted by the investigating officer and on those materials by the impugned order i.e. dated 12.1.2000, he took cognizance of the offences under section 182 and 211 of the Indian Penal Code and directed for summoning the petitioner. The court is satisfied that the order impugned is not sustainable in the eye of law and the same is liable to be set aside.