KAUSHAR IMAM HASHMI Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this application filed under Section 482 of the Code of Criminal Procedure the petitioners have prayed for quashing the order dated 7 -9 -1996 passed in Bishanpur P.S. Case No. 58/94 whereby the learned Additional Chief Judicial Magistrate, Darbhanga took cognizance under Sections 147,149,307 and 302 of the Indian Penal Code and Section 27 of the Arms Act and issued summons against the petitioners and further transferred the case to the Court of Judicial Magistrate, 1st Class for commitment of the case.

(2.) THE aforesaid criminal case was registered on the bastes of a first information report lodged by one Ram Pukar Choudhary alleging inter alia that on the relevant date he along with Sanjeet Kumar Choudhary and other persons went to Gumsar Pokhar to enable their cattle to drink water and for grazing. While they were returning from the said pond they arrived near southern -eastern Bhinda of the pond and in the meantime saw 20 -30 persons belonging to minority community of village Basant. They were alleged to be variously armed with lethal weapons including lathi, bhala, pharsa and guns and started to take their cattle towards their village Basant. The informant and others said to have protested the matter and upon that the petitioners and one Somar Imam Hashmi provoked the other persons as a result of which it was alleged that petitioner No. 3 and one Hasan Shaned fired from his short gun causing injuries to the informant and one co -accused also fired which caused injury to other persons. It was further alleged that the petitioners and other co -accused persons claim the land of Pokhar Bhinda as their grave yard and they have put their boundary over the land with a view to take possession. It appears that after the completion of the investigation the case of the prosecution was found partial true and charge -sheet was submitted only against ten persons showing their names in column 3 whereas the case of the petitioners was found to be false and were sent up for trial by the police as their names were not shown in column No. 2 of the charge -sheet. The petitioner's case is that a counter case was registered on the basis of F.I.R. lodged by one accused being Bishanpur P.S. Case No. 57/94. The petitioner's case is that on the basis of fardbeyan of the co -accused the instant case was lodged prior to the case of the prosecution side. It further appears that after the submissions of charge -sheet the informant of the instant case filed a petition on 11 -11 -1994 praying therein to take cognizance against the petitioner whose names were not sent up for trial. The Court below on the basis of evidence and material on record passed the impugned order and issued processes against the petitioners.

(3.) AFTER having heard learned Counsel for the petitioner and also perused the impugned order passed by the Court below, I am of the opinion that the points raised by the learned Counsel has no substance. From perusal of the impugned order it is manifest that after the submission of the charge -sheet the informant filed petition and made prayer to the Court for taking cognizance against these petitioners also on the ground inter alia that there are sufficient material on the record. The learned Magistrate on the said petition filed by the informant heard Counsels appearing for the parties on the question whether there are sufficient ground for proceeding against these petitioners also. The learned Magistrate came to the conclusion that from perusal of F.I.R., injury report, statements of witnesses in the case diary, the statements of witnesses recorded under Section 164 of the Code of Criminal Procedure and the materials available in the case diary and protest petition filed by the informant, a prima facie case is made out under Sections 147, 148, 149, 307, 302 I.P.C. and Section 27 of the Arms Act against the accused persons including the petitioners whose name appeared in column 2 and 3 of the charge -sheet. The learned Magistrate, therefore, took cognizance against all the accused persons including these petitioners.