MAQSOOD AHMAD KHAN 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 4.7.1997 passed, by Shri A.K. Singh, Judicial Magistrate, 1st Class, Gaya in Tr.No. 418/97 arising out of Complaint case No. 43/94 whereby and whereunder he has taken cognizance under Sections 144, 148, 427, 323 and 379 of the Indian Penal Code.

(2.) The case of the complainant-opposite party No. 2, in short, is that the complainant's father and father of accused-petitioner No. 1 Maqsood Ahmad Khan were full brothers and they were continuing in possession of the properties and the ancestral properties have not been partitioned. However, some properties were partitioned among them by virtue of Khangi Batwara. It is his further stand that some land of village Piparbar, Tola Salai Tand, Police station Dumaria, District Gaya were gifted to the complainant's grand father and accused petitioner No. 1 and since the date of execution of deed, father of petitioner No. 1 came in possession of the gifted land. It is alleged that on 17.6.1993 at about 1.00 PM the accused persons forming an unlawful assembly armed with deadly weapons came to the house and started removing Tiles, Bans Balli Chaukhat, door etc. from the portion of the house in occupation of the complainant's father. It is further alleged that accused No. 1 Maqsood Ahmad Khan was armed with rifle and other accused persons were armed with Lathi, Sibbal, spade. On objection being raised by the complainant, accused No. 1 save threat of dire consequences and the accused persons assaulted the informant with fist and slaps. The complainant sustained a loss of rupees more than twenty thousand from the removal of the articles and damage caused to the house.

(3.) It appears that on the basis of the said allegation F.I.R. was lodged before the Police vide Dumaria P.S. Case No. 3/94 in which the police after investigation submitted final report as mistake of fact. As protest petition was pending from before, therefore the same was treated as complaint. The complainant was examined on solemn affirmation and during inquiry under Section 202 of the Code two witnesses were examined. The learned Magistrate by the impugned order dated 4.7.1997 took cognizance under Sections 144, 148, 427, 323 and 379 of the Penal Code against the petitioners-accused. Against the said order the petitioners have preferred the present application for quashing before this Court.