LILOO MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) -The petitioner in this application has prayed for quashing the order dated 23/3/1967 by which the cognizance of the offence under Section 436 of the Indian Penal Code has been taken and processes were directed to be issued against the petitioner by the court below. This was done by the learned Judicial Magistrate on the basis of a complaint filed by opposite party No. 2.

(2.) It appears that on the basis of the farbeyan lodged bp opposit party No. 2 against the petitioner, police took up investigation. While the investigation was pending, a petition was filed by opposite party No. 2 in the Court below on 27/7/1985. No final order was passed on that petition by the court below. The investigation continued and the police submitted final form on 21/8/1985. By order dated 18/12/1986, the learned Judicial Magistrate accepted the final form. Thereafter petition of opposite party No 2 was treated as protest-cum-complaint petition and the learned Judicial Magistrate ordered that the petition may be listed on 23/3/1987 for examination of opposite party No. 2 on solemn affirmation. After enquiry the learned magistrate came to the conclusion that prima facie case was made out against the petitioner and by order dated 23-3-1987 he took cognizance of offienec under Section 436 and ordered for issuance of processes against the petitioner.

(3.) The only point on which the order impugned was challenged by Mr. Dayal, learned counsel for the petitioner, was that once the learned Magistrate had accepted the final form, he had no jurisdiction to proceed with regard to that case on the basis of the protest-cum-complaint petition filed by opposite party No. 2. He urged that acceptance of the final form was judicial act and by accepting that the learned Judicial Magistrate has discharged the petitioner from the offence and, therefore, for that very offence no process could have been issued against the petitioner. According to him, the order accepting the final form had become final as opposite party No. 2 did not challenge it by persuing the remedies provided under the Code of Criminal Procedure. Reliance was placed by Mr. Dayal in Bhuneshwar Prasad Sinha and others v. The State of Bihar and another, 1981 Cr LJ 795 Pat. It appears from the report that the facts of that case are similar to the facts of this case. However the correctness of the judgment in Bhuneshwar Prasad (supra) was challenged by the other side before the Supreme Court. The Supreme Court in Gopal Vijay Varma v. Bhuneshwar Prasad Sinka, 1983 PLJR 34 (SC): 1983 BLJ 165 (SC) set aside the order of the learned single Judge by holding that the High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report. The law laid down Bhuneshwar Prashad (supra) was not available to Mr. Dayal in view of the judgment of the Supreme Court in Gopal's case (supra). The learned magistrate was entitled under law to take cognizance of toe case upon the complaint filed by opposite party No. 2 and issue processes against the petitioner. We may gainfully refer to the decision of the Division Bench of this High Court in Munilal Thakur and others v. Nawal Kishore Thakur and another, 1985 Cr LJ 437. (Pat) (DB), in which all the cases relevant to this case including the case of Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 and Section 173 of the Code were noticed. In the case of Munilal Thakur (supra) the decision of the Supreme Court in Gopals case (supra) was also noticed.