MAKO DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Section 561-A of the Code of Criminal Procedure, 1898 by the petitioners for quashing the order taking cognizance against them under Section 188 of the Indian Penal Code, 1860 Mr. K.N. Jha, Sub-divisional Magistrate, Godda and transferred the case to Shri K.P. Srivastava, Judicial Magistrate, 1st Class, Godda for disposal.

(2.) On a petition filed by inc. opposite party No. 2, the police submitted a report to the Sub-divisional Magistrate Godda on 18th May, 1973 and on the basis of that report a proceeding under Section 144 of the Code of Criminal Procedure was started en 21st May, 1973 and both parties were restrained from going upon the land in dispute. Subsequently, on 16th July, 1973 an order was passed by which the rule was made absolute against the opposite party and was vacated against the petitioners. During the pendency of the proceeding under Section 144 of the Code of Criminal Procedure, a petition was filed by the opposite party on 6th June, 1973 for starting a proceeding under Section 188, Indian Penal Code, 1860, against the petitioners on the allegation that they had started construction of Chhawani of Dhaba and the matter was referred to the police for enquiry and report. The police accordingly, submitted a report on 12th June, 1973 for action under Section 188, Indian Penal Code, 1860. The learned Sub-divisional Magistrate thereupon filed a written complaint as required under, the provision of Section 195(1) of the Code of Criminal Procedure in the Court of the Sub-divisional Magistrate at Godda for taking cognizance against the petitioners under Section 188,. Indian Penal Code, 1860 and the learned Sub-divisional Magistrate, by his impugned order dated 21st July, 1973 took cognizance of the offence under Section 188, Indian Penal Code, against the petitioners and transferred the ease to the file of the Judicial Magistrate for disposal.

(3.) Although in the application tiled before this Court, at paragraph 10, it has been slated that no complaint was filed before taking cognizance under Section 188, Indian Penal Code, 1860, as required under Section 195 of the Code of Criminal Procedure, but it was found from the record of the case that it was not a fact and that actually a written complaint as required under Section 195(1) of the Code of Criminal Procedure was filed and on the basis of that written complaint cognizance was taken.