BHUNESHWAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application for quashing an order of the Sub-divisional Magistrate, Lakhisarai,, dated 17-8-1974 taking cognizance against the petitioners under Section 392 of the Indian Penal Code, 1860.

(2.) The opposite party Nageshwar Singh filed a petition of complaint in the court of the Sub-divisional Magistrate, Lakhisarai on 14-2-1974 against the petitioners. The allegations were that on 12-2-1974 the complainant Nageshwar Singh along with one Bishundeo Singh had gone to village Mahmadpur with Rs. 855.00 for purchasing a bullock from one Ramanand Singh. The complainant learnt that the bullock had already been sold away for Rs. 900.00. He was, therefore, returning with Bishundeo Singh. At about 5-15 p. m. when the complainant and Bishundeo Singh were passing through Lalmahwabadh all the four accused persons (petitioners) caught the complainant and asked him to hand over the money to them. On refusal of the complainant to give the money to them accused petitioners Kapildeo Singh, Sadhu Singh and Ramashray Singh assaulted him with lathi and accused petitioner Bhuneshwar Singh forcibly took away Rs. 855.00 from him. The complainant raised alarm on which witnesses came and saw the occurrence. Accused petitioners fled away.

(3.) The learned Sub-divisional Magistrate, examined the complainant on solemn affirmation on 14-2-74 and referred the matter for inquiry and report under Section 202 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the old Code) to Sri K.P. Mishra, Dy. Magistrate. The inquiry officer examined the witnesses produced by the complainant and submitted report to the effect that the case was prima facie true. But the Sub-divisional Magistrate disagreeing with the report of the Inquiry Officer dismissed, the complaint under Section 203 of the old Code by his order dated 6-3-74. The complainant preferred a revision before the sessions judge, against the order dismissing the complaint. The learned Sessions Judge, by his order dated 29-7-7'4 directed further inquiry to be made into the complaint. The Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code) had come into force with effect from 1-4-74. The order of the sessions judge, dated 29-7-74 was, therefore, forwarded to the Sub-divisional Judicial Magistrate, Lakhisarai for information and necessary action. The learned Sub-divisional Judicial Magistrate, on consideration of the materials before him, issued summons to the accused petitioner to stand trial under Section 392 of the Indian Penal Code, 1860, by his order dated 17-8-74. It is against that order that this application has been preferred.