MADAN TIWARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners have approached this Court invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order dated 30.1.2008 passed by the Chief Judicial Magistrate, Motihari, in Govindganj P.S. Case No. 118 of 2007/Trial No. 3044 of 2008, taking cognizance of the offence under Sections 328 and 302/34 of the Indian Penal Code against the accused-petitioners. In brief, the case is that on the basis of the written report of the informant-opposite party no. 2, Hakim Mian, Govindganj P.S. Case No.118 of 2007 was instituted on 28.10.2007 under Sections 302 and 328/34 of the Indian Penal Code against the accused-petitioners. It is alleged by the informant-opposite party no. 2 in the written report that his son, Saheb Alam, aged about 22 years, was driving the Commander Jeep for the last three years of the accused-petitioner no. 1, Madan Tiwary, residing at his house. On 28.10.2007 at about 4 A.M. in the morning, the petitioner no. 1, Madan Tiwary, came at the house of opposite party no. 2 carrying the dead body on ambulance and informed him that his son, Saheb Alam, in the preceding night at about 10 P.M. had consumed the poison and he was taken for treatment but he could not be saved and died. It is further alleged by the informant-opposite party no. 2 that he came in suspicion on the statement of the petitioner no. 1, Madan Tiwary, because if his son, Saheb Alam, had consumed poison, why his sasural's people, whose village are situated nearby were not informed. As such, he is in believe that his son, Saheb Alam, has been murdered by the petitioner no. 1, Madan Tiwary and his son, petitioner no. 2, Vishnu Kant Tiwary alias Pappu Tiwary.

(2.) The police on investigation submitted the final form finding the lack of evidence before the Court of the Chief Judicial Magistrate, Motihari. Thereafter, the Chief Judicial Magistrate, Motihari, differing with the final form took the cognizance of the offence under Sections 328 and 302/34 of the Indian Penal Code against the accused-petitioners, named in column 16 of the F.I.R., differing with the final form submitted by the Investigating Officer.

(3.) Learned counsel appearing on behalf of the petitioners made submission that there is nothing against the petitioners in the case diary except suspicion raised by the informant-opposite party no. 2 and the witnesses, as examined in course of investigation, but the Chief Judicial Magistrate, Motihari, illegally took the cognizance of the offence under Sections 328 and 302/34 of the Indian Penal Code against the petitioners differing with the final form submitted by the Investigating Officer. It has also been submitted that the paragraphs of the case diary, as detailed in the impugned order, are nothing but the statements of the informant-opposite party no. 2 and the other witnesses in which only suspicion has been raised against the petitioners to commit the murder of the deceased, Saheb Alam, the son of the informant-opposite party no. 2.