NAGIN B PARIKH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Section 482 of the Code of Criminal Procedure, on behalf of the six petitioners has been filed for quashing the order dated 24th June, 1988, passed by the Judicial Magistrate, 1st Class, Jamshedpur, in G. R. Case No. 768-A of 1982, whereby he has summoned the petitioners along with one Darmala Laxman Reddy.

(2.) Briefly, the facts are that on 7th May, 1982, the informant/Complainant, who is opposite party No. 2 in this application lodged an F. I. R. with Bistupur Police Station for theft of Cold Drink bottles of his company i.e., Steel City Beverage Pvt. Ltd., by the driver of the truck No. BPT 8069, who was an employee of the Jamshedpur Beverages Ltd., also owned the said truck. After registration of the case investigation was started, and while the same was pending a protest petition was filed on behalf of opposite party No. 2 on 20-8-1983, which was ordered to bo kept on the record by the then A. C. J. M., Jamshedpur. After completing the Investigation, the police submitted final report to the effect that the case registered on the behest of the complainant under Sections 448, 379, 272 and 511/34, I. P. C. was false. The final report was accepted by the A. C. J. M., Jamshedpur by his order dated 3-1-1985. Thereafter the informant pressed his protest petition referred to above and after hearing both the parties, the court by its order dated 22nd May, 1985, directed the informant to proceed with the protest petition and examine his witnesses in support of his case. During the said enquiry under Section 202 read with Section 210, Cr. P. C, the learned court of the A. C. J. M. Jamshedpur, examined the complainant as well as 16 other witnesses who were produced in Support of his case. After the complainant and his witnesses were examined during the course of the enquiry, a detailed order was passed on 1-10-1985 by the A. C. J. M., Jamshedpur, whereby the court below found that a prima facie case was made out against the accused Darmala Reddy, the driver of the aforementioned truck as there was sufficient material to proceed against him. At the same time, a finding was recorded that there was no material to proceed against other accused persons named in the complaint petition, meaning thereby the present petitioners before this Court. Though, it is not categorically mentioned in the order of the A. C. J. M., Jamshedpur dated 1-10-1985, but the effect of the said order was tantamount to dispose of the protest petition of the informant, which was filed by him on 20-8-1983.

(3.) Opposite party No. 2, (informant/complainant) did not challenge that order of the A. C. J. M., Jamshedpur, dated 1-10-1985, by way of revision etc. which was the remedy available to him at that time. On the other hand, almost three years later he made an application on 23rd May, 1988 with a prayer that the remaining accused persons in the above G. R. Base No. 768-A of 1982 may be summoned to face trial, a copy of that application is Annexure-6 to this petition. It was not disclosed therein that an order had already been passed by the predecessor court dated 1-10-1985 in which there was a categorical finding that there is no material to proceed against the other accused persons, who were none other than the petitioners before this Court. It seems that the prosecution also made a similar application (Annexure-7) on the very next day i.e., on 24-5-1988, before the Judicial Magistrate, First Class, Jamshedpur, to which court the trial of the case against the said driver for the offence under Section 379, I. P. C. had been transferred. In that application by the prosecution, a reference was made to a Full Bench Judgment of this Court. It was on these two applications of the complainant/informant and the prosecution that the impugned order dated 24th June, 1993 has been passed. It needs to be mentioned here that in the impugned order reported reference has been made to Section 201, Cr. P. C. which does not relate to any enquiry into the complaint of the informant. The learned Judicial Magistrate, Jamshedpur has proceeded on the ground that in view of the law laid down by the Full Bench of this Court to the effect that Section 319, Cr. P. C. is not the sole repository of the power of court to summon the petitioner-accused persons, but the learned counsel below has conveniently omitted to take notice of the order dated 1-10-1985 passed by the A. C. J. M., Jamshedpur, referred to above.