BHAGWAN DAS Vs. SUB-DIVISIONAL MAGISTRATE

JUDGEMENT

(1.) This application under Section 561A of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code) is on behalf of the accused persons, eighteen in number. It has been filed with the prayer to quash the cognizance in the case as taken by the Sub-divisional Magistrate, Nawadah in his order dated 6-9-1973 and the subsequent proceedings thereto as taken in the transferee court where the case is still pending. The first three opposite party are the above Sub-divisional Magistrate and the transferee Magistrates and opposite party No. 4 is the complainant of this case.

(2.) On 24-11-1972 the complainant filed a complaint in the court of the Sub-divisional Magistrate, Gaya making allegations against these petitioners that on 23-11-1972 at about 8 A.M. they had forcibly cut away the paddy crops that he had grown on his 0.75 acre of plot No. 110 and had removed them putting him to a loss of about Rs. 500. On receiving this complaint the Sub-divisional Magistrate examined the complainant on oath on that very day, i.e. 24-11-1972 and referred the matter for judicial enquiry. Subsequently on the complainant's petition the enquiry was recalled from that Magistrate and entrusted to another officer. It was also recalled from him as he failed to complete the enquiry in time and was entrusted to another Magistrate, Mr. T. K. Dass. In course of his enquiry, he examined five witnesses and after examining the evidence and the circumstances placed before him, he submitted his report to the Sub-divisional Magistrate, Nawadah, to whose file the case had come from Gaya upon creation of the new Nawadah district in respect of areas covered out from the Gaya district. The Sub-divisional Magistrate, Nawadah, after having perused that enquiry report, felt satisfied that prima facie case under Section 379, Indian Penal Code had been established against all the 18 accused persons. Accordingly, he took cognizance in the case under that section and transferred it to another Magistrate for disposal. In the transferee court the case is said to be still pending at that stage in view of the stay order of this Court in the instant application.

(3.) Mr. C. P. Sinha learned Counsel for the petitioners, has assailed the cognisance and the proceeding in the case on the ground that at the time this incident is said to have taken place, a proceeding under Section 144 of the Code was already pending in respect of this land was initiated earlier. In that situation, it was not open to the Sub-divisional Magistrate to have taken cognizance of any complaint under Section 379, Indian Penal Code, 1860, against these accused persons, and if any action was called for on any such complaint that should have been under Section 188, Indian Penal Code, 1860, For this view, he has strongly relied on the decision of M. P. Verma, J. in Mahendra Prasad Singh v. State of Bihar . His submission is that the cognizance so taken in the case, must, therefore be quashed and the Sub-divisional Magistrate should be directed to initiate action under Section 188, Indian Penal Code, 1860 if he finds materials to act on that line.