MD. ILLIAS AND 3 OTHERS Vs. MD. ZULAFFAKAR

JUDGEMENT

(1.) This is an application under Sec. 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') to quash the order, by which the learned Magistrate took cognizance of the offence punishable under Sec. 419, 467, 468 read with Sec. 114 of the Indian Penal Code. The prosecution, has been initiated on the basis of a complaint petition filed by the opposite party in the court of the Chief Judicial Magistrate, Banka, on 1.6.1983. The said petition was transferred to the court of a first class Magistrate under the provisions of Sec. 192(2) of the Code. In the transferee court an enquiry under Sec. 202 of the Code was held and, thereafter, summons were issued against the petitioners to face trial.

(2.) The fact necessary for disposal of this case are that an application was filed oh 2.3.1981 purported to be on behalf of Mr. Md. Shakhawat, father of the opposite party, before the Consolidation Officer, Barahat, for sanction to transfer some lands. The Consolidation Officer gave the requisite permission as provided under Sec. 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, (Bihar Act XXII of 1956) (hereinafter referred to as the Act) to sell 1.66 Acres of land spread over several plots. According to the complaint petition, petitioner no. 4, Abdul Lais, falsely impersonated Md. Shakhawat, father of the opposite party and two affidavits were filed by petitioners no. 2, Md. Soaib and no. 3, Md. Zobar, who were identified by petitioner no. 1, Md. Illias. A case was registered on the basis of the said application, which was numbered as Case no. 878/80 -81. The Consolidation Officer, in exercise of the power under Sec. 6 of the Act, accorded sanction. Allegation against the petitioners is that in connivance with each other they filed a false petition in the name of the opposite party and illegally obtained permission and thereby made themselves liable for prosecution for committing the offences, mentioned above.

(3.) The validity of the order taking cognizance has been challenged on the ground that a complaint petition at the instance of a private party was not maintainable. In support of this contention, learned counsel for the petitioners has referred to Sec. 195 (1) (b) (ii) of the Code, which is thus: - -