BANSHI MODI Vs. STATE OF BIHAR

JUDGEMENT

(1.) BY order dated 29.8.1981, notice was directed to be issued on opposite party No. 1, as to why this application should not be admitted. Opposite party No. 1 has entered his appearance and with consent of all the parties this application is being disposed of at this stage.

(2.) ON 18.2.1976, opposite party No. 1, lodged an information with the police making allegation against the petitioners. All the petitioners have been named in the information lodged by opposite party No. 1. On the basis of the information lodged by opposite party No. 1, the police took up investigation. The Investigating Officer submitted a final report holding that the information given by opposite party No. 1 was false and prayed for a proceeding against him under Sections 182 and 211 of the I.P.C. This report dated 11th May, 1976 was put up before the Court below on 28th August, 1976, but no final order was passed on that day. Meanwhile, on 3rd April, 1976, opposite party No. 1 filed an application before the Court below, which has been described as protest petition and is Annexure -3 to the application. It was stated by him that the police was in collusion with the petitioners, and, therefore, he did not expect justice at the hands of Investigating Officer. He prayed that this protest petition should be treated as a complaint and cognizance should be taken on the basis of this. This was put up before the Court below on 20th October, 1976. On 22nd August, 1979, an inquiry under Section 202 of Cr. P.C. (the Code) was started, but no final order was passed on the same. On 9.9.1981, the Court below noticed all these facts and on the basis of police report took cognizance of the offence under Sections 147, 148, 436 and 307 of I. P.C. and directed for issuing processes against the petitioners. The legality of this order has been challenged in this application.

(3.) I have noticed in detail, the facts which are not in dispute. Some more facts which are required to be noticed are that before passing any final order on the police report which was put up before the Court below on 20.8.1976, it had directed that an inquiry under Section 202 of the Code on the protest petition filed on behalf of the opposite party No. 1 would be done. Therefore, the date on which the impugned order was passed, F.I.R., case diary, final report of the police as well as the evidence recorded in the inquiry under Section 202 of the Code were before the Court. Mr. Dayal has placed a few lines of the impugned order and submitted that the Court below has taken into consideration the evidence recorded in that inquiry along with the police report for the purpose of taking cognizance. He urged that since this has been done in view of Ram Kumar Pandey's case, the order is bad. On perusal of the impugned order. I find that for the purpose of taking cognizance against the petitioners, the Court below has not taken into consideration the evidence recorded under Section 202 of the Code. The Court below has clearly stated that it was ignoring the evidence recorded in the inquiry. That being so, Ram Kumar Pandey's case has no application to this case. Mr. Dayal admitted that Bhuneshwar Prasad Sinha's case has no application.