GOWARDHAN BESHAK Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under Section 482 of the Code of Criminal Procedure 1973 (in short &aposthe Code&apos). It is directed against the order dated 16.5.2001 passed by Shri A.N. Jha, Judicial Magistrate, 1st Class, Katihar by which he had taken cognizance of the offences under various sections against the petitioners in Balrampur P.S. Case No. 83/98.

(2.) IT appears that one Sanjeev Kumar Mishra (O.P. No. 2} had filed Complaint Case No. 1339 of 1998 on 26.9.1998 in the Court of the Chief Judicial Magistrate. Katihar. The said complaint petition was sent to Balrampur police station in the district of Katihar, on the basis of which Balrampur P.S. Case No. 83/98 was instituted. The police after completing the investigations submitted final report false and recommended for the prosecution of the complainant under Sections 182 and 211 of the Indian Penal Code. This final report is dated 14.6.1999. From Annexure -6 which is the order sheet of the Court of the Chief Judicial Magistrate. Katihar in this case, it appears that the final report was placed before him on 5.7.2000. However, since before this date a protest petition dated 18.11.1991 was pending before the learned Magistrate he directed that it may be treated to be a complaint petition and the informant may be examined on solemn affirmation on 10.8.2000. From the impugned order dated 16.5.2001 (Annexure 1) it appears that opposite party No. 2 was examined on solemn affirmation on 14.11.2000 and on

(3.) THE parties have been heard at length in the matter. It appears that Complaint Case No. 1339 of 1998 was filed by opposite party No. 2 on 26.9.1998 against the present petitioners. It further appears that this complaint petition was sent to the police on the basis of which Balrampur P.S. Case No. 83/98 was instituted. There is nothing on record to show that on filing of this complaint petition the complainant (opposite party No. 2) was examined on solemn affirmation. Annexure 6 is the order sheet of Balrampur P.S. Case No. 83/98. It does not show that the complainant was examined on solemn affirmation by the Magistrate. On the other hand the record shows that a final report false was submitted by the police on 14.6.1999. It further appears that even before the submission of the final report a protest petition dated 18.11.1998 (which has been numbered as C. A. No. 1221 of 2000) was filed by the complainant against the investigation done by the police alleging therein that the accused persons had gained over the officer incharge of the police station. This protest petition was treated to be the complaint petition as will appear from the order sheet dated 5.7.2000 (Annexure 6). The learned Magistrate had ordered that this protest petition may be treated to be a complaint petition and 10.8.2000 was the date fixed for examination of the complainant on solemn affirmation. The impugned order dated 16.5.2001 shows that it was on 14.11.2000 that the complainant was examined on solemn affirmation with respect to the allegations made in the protest petition and another witness Abdul Latif was examined on 3.2.2001. It was after this that the learned Magistrate had proceeded to take cognizance of the offence and it is this order that has been challenged in the present application.