RAJESH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The complainant's complaint before the Chief Judicial Magistrate, Bhagalpur, has been aborted by the interference of the Assistant Public Prosecutor acting under S.321 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

(2.) It is alleged in the complaint that on 18-6-1982 at about 8 a.m. while the complainant was sitting at his darwaza, the opposite party Nos. 2 and 3 along with 25-30 unknown persons came at his darwaza, and surrounded the complainant. While the complainant was fleeing away on his cycle, the opposite party No. 2 fired his gun at the complainant but it did not hit him. This matter was reported to the Police, who according to the petitioner advised him to file a complaint against the opposite party Nos. 2 and 3 because they were influential persons. A complaint was subsequently lodged on 19-6-1982.

(3.) After the complainant had been examined on solemn affirmation, the complaint petition was referred to the Police for investigation under S.202(1) of the Code. Digressing here, I may state that the reference to the Police has to be treated to be under S.202(1) of the Code and not under S.156(3) of the Code because the petitioner complainant had been examined on solemn affirmation. If the matter had been sent to the Police before such an examination then it would have been an investigation under S.156(3) of the Code. This is a very well settled situation of law. The Police after investigation, submitted final form on which the Court is said to have taken cognizance, an act that was no longer justified in law because it had already taken cognizance after examining the complainant on solemn affirmation. It should have treated the final form as a report of investigation under S.202 of the Code. The process issued by it, therefore, will remain a process issued on the basis of the complaint petition.