BRAHAMDEO MAHTO @ BRAHAMDAO PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application for quashing the entire criminal proceeding including the order dated 31-7-1993 passed by Sri Ajit Kumar Modi, Judicial Magistrate, Nalanda in Complaint Case No. 224 of 1993 whereby the learned Magistrate has taken cognizance of the offence against the petitioners under Sections 323, 379 aqd 504, IPC.

(2.) Petitioner No. 1 Brahamdeo Mahto @ Brahamdeo Prasad and opposite party No. 2 Indradeo Mahto are full brothers and petitioner No. 2 Murari Prasad @ Krishna Murari is the son of petitioner No. 1. It appears that opposite party No. 2 filed a complaint petition before the C.J.M., Bihar Sharif on 28-5-1993 alleging therein that all movable and immovable properties, excepting four decimals of land situated at Asthawan had been partitioned between the petitioners on the one hand and the opposite party No. 2 on the other. On 26-5-1993 at 4 p.m. opposite party No. 2, accompanied by a witness named, Brahamdeo Prasad went to the Baithka of petitioner No. 1 Brahamdeo Prasad and requested petitioner No. 1 for partition of 4 decimals of land situated at Asthawan. The moment opposite parry No. 2 demanded for partition, petitioner No. 1 started abusing him and petitioner No. 2 asked opposite party No. 2 to leave the place. In spite of that when opposite party No. 2 insisted for partition of the said land, petitioner No. 2 chased him and under the circumstances opposite party No. 2 ran away from that place but requested petitioner No. 1 for partition from some distance on which both the petitioners got annoyed and assulted opposite party No. 2 with fists and slaps. Petitioner No. 2 is alleged to have caught hold of opposite party No. 2 and took out Rs. 350 from his pocket. Due to hue and cry raised by opposite party No. 2 persons arrived and saved him from further assault by the petitioners. On the basis of the complaint petition, complaint case No. 224 of 1993 was registered against both the petitioners. The learned Chief Judicial Magistrate after perusing the complaint petition and hearing the learned counsel for the complainant (O. P. No. 2) felt the necessity of enquiry and accordingly transferred the same to the Court of Sri A. K. Modi, Judicial Magistrate, 1st class for recording the statement of the complainant (O. P. No. 2) on oath and for disposal of the case after holding enquiry. The C.JM. did so under Sec. 192(1) of the Code of Criminal Procedure. The said Magistrate recorded the statement of the complainant on oath and also examined four winesses produced by the complainant in course of enquiry and after finding a prima facie case under Sections 323, 379 and 501, IPC ordered for issuance of summons to the accused-petitioners as per his impugned order dated 31-7-1993 and hence this application under Section 482, CrPC for quashing the criminal proceeding including the impugned order.

(3.) It was contended by the learned counsel for the petitioners that after filing of complaint the learned C.J.M. examined the complainant on S. A. and transferred the case for enquiry and disposal to the Court of Sri A.K. Modi, Judicial Magistrate, who ultimately took cognizance of the offences by his impugned orded, dated 31-7-1993. It was further contended that entrustment of enquiry under Section 202, CrPC by the learned C.J.M. to Sri A. K. Modi, Judicial Magistrate is illegal and is against the procedure sanctioned by law. To me there appears no subtance in this contention. From the record it would appear that statement of complainant on oath was recorded by the said Judicial Magistrate and not by the Chief Judicial Magistrate. Further more, it would appear from the order dated 9-6-1993 of the C.J.M. that after perusing the complaint petition and hearing the learned counsel for the complainant (O.P. No. 2) the learned C.J.M. was satisfied that an enquiry into the allegations was necessary and, accordingly, he transferred the case to the file of the aforesaid Judicial Magistrate for recording the statement of the complainant on oath and for disposal of the case, after holding enquiry. The learned C.J.M. passed the said order dated 9-6-1993. Section 192 (1), CrPC provides that any C.J.M. may, after taking cognizance of an offence make over the case for enquiry or trial to any competent Magistrate subordinate to him. So what the C.J.M. did was undoubtedly in accordance with the provisions of Section 192(1), CrPC.