JAGDISH MANDAL Vs. STATE OF BINAR

JUDGEMENT

(1.) THE petitioner has filed this application for quashing the order dated 23. 5. 1989 passed in Complaint Case no. 48c/88 whereby the Magistrate after taking cognizance issued notice to the petitioner.

(2.) OPPOSITE Party no. 2 filed a complaint case on 9. 2. 1988 making allegation that on 22. 1. 1988 the petitioner and other accused persons came variously armed and took away articles as mentioned in the complaint petition. On protest. made by rajendra Mandal, Goving Das and Shiv narain Mandal, accused persons threatened to assault them. The complaint petition was referred to the police under section 156 (3)of the Code of Criminal Procedure (hereinafter to be referred as the Code) for registering First Information Report and for investigation on the same day i. e. 9. 2. 1988. On 6. 4. 1989 Opposite Party no. 2 filed an application stating therein that inspite of order passed under section 156 (3) of the code, no First Information Report was registered by the police and, accordingly, a prayer was made to recall the order. On the same day, order dated 9. 2. 1988 referring the complaint petition to the police, was recalled. The complainant was examined on solemn affirmation on 22. 4. 1989 and the case was transferred to Sri M. M. Choudhary, judicial Magistrate under section 192 of the code for enquiry and trial. During enquiry, 5 witnesses were examined on behalf of complainant. The court on consideration of materials and on being satisfied that primafacie case is made out, directed for issuance of summons to the accused persons including the petitioner by the impugned order.

(3.) LEARNED counsel for the petitioner contended that the order taking cognizance is bad in law as the Magistrate had no power to recall the order dated 9. 2. 1988 whereby the complaint was referred to the police for investigation. He also pointed out that the prosecution case is absurd, and hence the entire proceeding including the order taking cognizance be quashed. On the other hand, learned counsel for the Opposite parties contended that there is no illegality in the order taking cognizance as the Magistrate being satisfied that sufficient material is available on the record has taken cognizance. Besides recalling the order dated 9. 2. 1988 in the facts and circumstances of the case was not bad in law.