MD.KAMAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application u/s. 482 of the Code of Criminal Procedure (in short as 'the Code ') has been filed for quashing the order dated 13.9.2004, by which order has been passed to confirm the proceeding u/s. 188 of the Indian Penal Code (in short as ' Indian Penal Code, 1860 ') against the petitioners and also for quashing the order dated 20.9.2004 passed by learned Chief Judicial Magistrate, Jehanabad whereby and whereunder cognizance has been taken against the petitioners.

(2.) It is said that the learned Sub -divisional Magistrate, Jehanabad on being satisfied regarding apprehension of breach of peace initiated a proceeding under Sec. 144 of the Code restraining the parties from going near or upon a strip of land measuring 12 ' long north to south and 5. ' wide east to west being a portion of plot No. 1060/2141 under khata No. 5748 with specified boundary situated at Mohalla Kanchia Tola, Ward No. 6 of the town Jehanabad. The notice under sec. 144 of the Code restraining the parties was served upon them on 30.8.2003. It is alleged that inspite of service of notice petitioners/opposite party on 3.9.2003 at about 4.00 PM went over the land in dispute and opened a door towards west measuring 10 ' long and 5. ' wide and also a window and fitted the same in old door frame and old plank as well old window frame with plank. The opposite party/first party on 4.9.2003 filed a petition in the court of Sub -divisional Magistrate, Jehanabad for initiating the proceeding against the petitioners u/s. 188 Indian Penal Code, 1860 . On 13.9.2004 learned Sub -divisional Magistrate after hearing the parties passed order to initiate a proceeding under Sec. 188 Indian Penal Code, 1860 against the petitioners. Thereafter the prosecution report was filed in the court of Chief Judicial Magistrate, Jehanabad who by order dated 20.9.2004 took cognizance u/s. 188 Indian Penal Code, 1860 . Against the said order of cognizance the petitioners have preferred the present application for quashing.

(3.) IT was contended on behalf of the petitioners that the learned Chief Judicial Magistrate, Jehanabad could not have taken cognizance of the offence aforesaid in view of Clause (b) of Sub - sec. (2) of sec. 468 of the Code which provides one year as the period of limitation for taking cognizance of offence which is punishable for a term not exceeding one year. In support of his contention, learned Counsel placed reliance on the following two decisions: (i) 2004 (2) PLJR 809 (Sanjeev Kumar Mishra V/s. State) (ii) 2004(2) PLJR 208 (Upendra Prasad Yadav V/s. The State of Bihar)