NILRATAN TIWARY AND ORS. Vs. MUCHI RAM MANDAL

JUDGEMENT

(1.) This application under Sec. 561A of the Code of Criminal Procedure, 1898 on behalf of the five accused persons is to quash the Magistrate's order dated 10.8.1972 (wrongly typed as 10.7.1972 in this application) under which he has taken cognizance for the offences under Sec. 436/109 of the Indian Penal Code against them. Of the petitioners, nos. 2 to 4 are said to be labourers under no. 1 No. 5 is the brother of the complainant (opposite party). On 2.4.1972 at noon this complainant submitted his written report at the police station alleging that that morning at about 4 A.M. Motilal Bawri, Pulin Tudu and Kala Hasda (petitioners 2 to 4) had under the orders of Nilu Tiwary (petitioner no. 1) had set fire to his thatched house and as a result thereof, it got completely burnt putting him to a loss of about Rs. 500/ - It was also alleged therein that on the previous day, Nilu Tiwary had at the instance of accused Mahadeo Mandal, with whom the complainant was litigating, held a meeting in which he had called upon complainant to share the fruits of the mahua trees with others and his being not agreeable to it he held out threats that they would be looted away and shared by all. It was for this reason that Nilu Tiwary had instigated these labourers of his to do that mischief to his house. A copy of this first information report along with the written report is Annexure 1 to this application.

(2.) On the lodging of the above first information report, the police instituted a case under Sec. 436 of the Indian Penal Code against all the five accused persons and took up investigation, on the basis of a copy of the first information report having been forwarded to the court of the Magistrate a G.R. case under Sec. 436, Indian Penal Code was registered against them and it was ordered to be put up after final form was submitted by the police in the case. On 19.5.1972, the complainant filed a petition before the Magistrate complaining about police apathy in taking appropriate action against the accused in that case. He alleged therein that the accused persons had not till then been apprehended by the police and were moving freely in the village threatening him with dire consequences creating an impression that they had gained over the police. He also requested the Sub -divisional Magistrate to direct the police to apprehend the accused persons and also to investigate into the case in right earnest. On that petition of the complainant the Magistrate ordered its copy to be sent to the Police Inspector and also directed the police to submit the final form in the case by 6.4.1972. The final form did not however, come till 6.7.1972 on which date the Magistrate directed the police to be reminded by about it and the next date fixed in the case was 24.8.1972. In the meanwhile on that very day, i.e. 26.7.1972 the complainant filed a complaint petition in the court of the Sub -divisional Magistrate making accusations of the aforesaid nature against them. In this complaint, he also made accusation against the police of sitting over the case which he had already lodged with them and which on the first information report has been registered as Nala P.S. case no. 1(4) 72 under Sec. 436, Indian Penal Code. He further gave out that as he had reliably learnt, the police have decided to submit a final report in the case because of their partisan attitude towards the accused persons and that is why he was filing this regular complaint.

(3.) On receipt of the above complaint dated 26.7 1972, the Sub -divisional Magistrate examined the complainant on solemn affirmation and referred the complaint to another Magistrate for enquiry and report by 10.8.1972. During the enquiry before him, the complainant examined 5 witnesses to support his allegations made in the complaint petition. On an examination of those evidence, the Enquiry Magistrate submitted a report to the Sub -divisional Magistrate saying that the accused should be summoned to face trial as a prima facie case had been made out against them. After perusal of this enquiry report, learned Sub -divisional Magistrate, in his order dated 10.8.1972, took cognizance in the case under Sec. 436/109 of the Indian Penal Code against the accused and transferred it to another Magistrate for disposal. As already observed, it is this order which is the subject of challenge in this application.