MUTA MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application for quashing the entire criminal prosecution as well as the order taking cognizance dated 27-7-1984 passed by Shri Ashghar Ali, Judicial Magistrate, 1st Class, Hazaribagh, in complaint Case No. 169 of 1984, whereby he had taken cognizance of the offence under Sections 147,148,379 and 426 of the Indian Penal Code, in the following circumstances.

(2.) It appears that a proceeding under Section 147 of the Code of Criminal Procedure had started between the parties and that proceeding ultimately concluded on 16-6-1984 in which learned Executive Magistrate has passed the order that the petitioner who was the first party in that proceeding had full right of user over plot no. 728 khata. 1/76 with an area of .03 acres out of 7.23 acres and he had also given the boundary on that land. He had further directed the police to get the obstruction already placed on the land under proceeding, be removed immediately and report compliance. It appears that in pursuance of the aforesaid order passed by the Executive Magistrate the police had removed the obstruction and submitted compliance report on 5-7-1984 vide Annexure-3 Thereafter, it appears that the complainant who was the second party in that 147 proceeding had file a case alleging that the petitioners had forming an unlawful assembly had cut and removed the trees. Thereafter, the learned Magistrate took cognizance of the offence as indicated above, which is being challanged in this application under Section 482 of the Code of Criminal Procedure.

(3.) The learned counsel for the petitioners, Mr. U.K. Sarkar has submitted that whatever, the petitioner or the police officer had done in pursuance to the judicial order passed by the learned Executive Magistrate and as such the action taken by them in pursuance to the aforesaid lawful order is fully protected under Section 78 of the Indian Penal Code. On the other hand the learned counsel appearing on behalf of the opposite party No. 2, complaint, has submitted that they had transgressed the limit of the order and cut the trees for which he had filed the case.