KUMAR NANDAN @ BITTU KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE instant application at the instance of Kumar Nandan @ Bittu Kumar, one of the persons impleaded as accused in Hajipur (Town) P.S. Case No. 489/98 (G.R. 3084/98, Tr. No. 965/05) is directed against the order dated 21.7.2006 passed in Cr. Rev. No. 203/2005 by Sri Prabhat Kumar Jha, the learned Sessions Judge, Vaishali at Hajipur, whereby and whereunder he has dismissed the revision application of the petitioner herein challenging the legality of the order dated 21.4.2005 passed in the aforesaid G.R. Case No. 3084/98 by Sri Sunil Kumar Singh, Judicial Magistrate, First Class, Hajipur, by which the learned Magistrate dismissed the petition of the petitioner herein for his discharge u/s 239 Cr.P.C. A prayer has also been made for quashing of the entire criminal proceeding pending against him including the order taking cognizance.

(2.) THE grievance of the petitioner herein is three fold: (i) the learned Chief Judicial Magistrate had erred in allowing the petition of the informant for recording the statement of the witnesses u/s 164 Gr.P.C; (ii) the learned Chief Judicial Magistrate without treating the protest petition filed by the informant as a complaint case and without examining the witnesses on solemn affirmation took cognizance of the offence under Sections 144, 447, 379 I.P.C. only by relying on the available statements under Sec.164 Cr.P.C.; and.(iii) that no offence under Sec.144 I.PC. can be said to have been made out as charge - sheet had been submitted against three persons only.

(3.) SO far as the second contention is concerned, it was submitted that the informant on being aggrieved by the charge -sheet filed a protest petition before the learned Chief Judicial Magistrate and the court without treating the protest petition as complaint case and without examining the witnesses on solemn affirmation took cognizance of the Offence under Sections 144, 447, 427, 379. I.P.C. solely on the basis of the statement of the witnesses recorded under Sec.164 Cr.P.C. According to the learned counsel for the petitioner herein the procedure adopted by the learned C. J.M. was against the well established principles of law and the reliance on the statement of the witnesses recorded under Sec.164 Cr.P.C. in respect of the offence of theft had no legal sanctity.