SATYA NARAYAN RAUT Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under section 482 of the Code of Criminal Procedure, 1973 (in short the 'Code '). It is directed against the entire prosecution of the petitioners in Tr. No, 944 of 1992 pending in the court of Shri O.P Singh, Judicial Magistrate, 1st Class, Madhubani. The petitioners have further prayed for quashing of the order dated 18.1.1993 passed by the learned Magistrate rejecting the prayer of the petitioners for their discharge under section 239 of the Code of Criminal Procedure.

(2.) THE prosecution case, in short, is that on 16.5.1991 the F.I.R. was lodged by opposite party no. 2, Ram Bilash Prasad, stating therein that he happens to be the tenant in the house of the petitioners. The petitioners had asked him to vacate the house in question upon which he told them that on finding alternative accommodation he will vacate the same. Thereafter on 12.5.1991 the petitioners with the help of others, forcibly took away the Generator set of opposite party no. 2 from the Verandah to inside the house. On his protest opposite party no. 2 was assaulted by the petitioners and his room was locked. At the intervention of residents known to the petitioners OP No. 2 watted for few days to get the matter sorted out mutually. When this could not happen he lodged Mabhubani P.S. Case No. 185 of 1991 on 16.5.1991.

(3.) IN this case the police after completing the investigation submitted the charge sheet on the basis of which by his order dated 18.6.1992 the learned Chief Judicial Magistrate took cognizance against the petitioners under sections 447, 323, 379 and 411 of the Indian Penal Code. The petitioners filed a petition under section 239 of the Code before the learned Magistrate for their discharge on the ground that the dispute between the parties was purely of a civil nature and related to a dispute between the landlord and the tenant. Resort to criminal proceeding was an abuse of the process of the court. The learned Magistrate, however, by the impugned order dated 18.1.1993 rejected this petition of the petitioners and held that there were sufficient materials on record to frame charges against them under sections 448 and 380 of the Indian Penal Code. No case under section 448 of the Indian Penal Code was made out inasmuch as the Verandah from which the generator is said to be removed was not in possession of opposite party no. 2. Since this generator was handed over to the petitioners by opposite party no. 2, by way of surety, there was no question of any theft. On these grounds it has been contended that the impugned order as also the entire proceeding in Cr. Case No. 944/92 be quashed.