BABUDDIN ALIAS BABUDDIN AHMAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application filed under Section 82 of the Code of Criminal Procedure, 1973 (in short 'the Code') has been filed (sic)r quashing the order dated 24.8.2002 passed by Shri R.L. Sharma, Judicial Magistrate, Katihar in Complaint Case No. 1210 (sic) 2001, whereby he ordered for the issue of summons against the accused persons including the present two Petitioners.

(2.) From the prosecution case it appears that opposite party No. 2, Akhilesh Razak had filed a complaint petition on 13.8.2001 in the court of the Chief Judicial Magistrate Katihar which was registered as Complaint Case No. 1210 of 2001. It has been alleged by the Petitioners that on the receipt of this complaint petition the learned Chief Judicial Magistrate without examining the complainant (Opposite party No. 2) on solemn affirmation and even without taking Cognizance of the offences, by his order dated 13.8.2001 made over the case to the court of Shri Ram Padarath, Judicial Magistrate, 1st Class, Katihar under the provisions of Section 192(1) of the Code for enquiry and disposal. According to the Petitioners this order is wholly illegal.

(3.) It has been contended that on the receipt of this case the transferee Magistrate examined the complainant on solemn affirmation and also examined four witnesses in support of the case of the prosecution. Thereafter by his order dated 24.8.2002 he held that a case under Sections 147, 447, 323 and 392 of the Indian Penal Code was made out against the accused including the present Petitioners and ordered for issue of processes against them. It was further contended that the allegations made in the complaint petition are false and malafide. The parties have got land dispute as a result of which this false case has been instituted. The criminal proceeding against the present Petitioners is manifestly malafide and malicious as a result of land dispute between the parties. The prosecution witnesses examined by the learned Magistrate have not supported the case of the prosecution. The continuance of this criminal proceeding is an abuse of the process of the court. It was, therefore, prayed that the proceeding in Complaint Case No. 1210 of 2001 presently pending in the court of Shri R.L. Sharma, Judicial Magistrate 1st Class be set aside and the impugned order be quashed.