MD KAMAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Section 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 under Section 188 of the Indian Penal Code (in short as 'IPC') 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 Section 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 Section 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 under Section 188 IPC. On 13.9.2004 learned Sub -divisional Magistrate after hearing the parties passed order to initiate a proceeding under Section 188 IPC 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 under Section 188 IPC. Against the said order of cognizance the petitioners have preferred the present application for quashing.

(3.) IN order to appreciate the argument raised on behalf of the petitioners certain facts have to be noted. The learned Sub -divisional Magistrate after hearing first party/opposite party on 29.8.2003 initiated the proceeding under Section 144 of the Code, the notice of which was duly served upon the parties on 30.8.2003.