ANIL KUMAR SAH Vs. NAGENDRA SINGH

JUDGEMENT

(1.) The prayer in this application is to quash the order dated 2-2-1983 passed by the Chief Judicial Magistrate, Motihari in Complaint Case No.948(C) 81 T.R. No. 1306/83 whereby the learned Magistrate has taken cognizance of the offence under Ss.323 and 379 of the I.P.C. against the petitioners who figure as accused persons in that case. It has also been prayed that after quashing the impugned order the rule may be made absolute against the opposite party Nagendra Singh, who is the complainant of the case.

(2.) The complainants' case arises out of the protest petition filed by the opposite party in Motihari P.S. Case No.98/81. From the lower Court record, which has been called for in this case, it appears that at 9 a.m. on 4-4-81 the opposite party Nagendra Singh filed a written report at Motihari Sadar P.S. alleging therein that at about 12.30 in the previous night while he was returning after seeing cinema and had reached near the northern Gumti of Motihari Railway Station, he was surrounded by four persons i.e. petitioners who asked him to withdraw the case which had been filed against them by his uncle and this led to an altercation in course of which there was also scuffle (Hathapai). He further alleged in the written report that in course of scuffle Rs. 75.00 had been taken out from his upper pocket and that on his Hullah the witnesses came there and the accused persons ran away. On the basis of this written report the police instituted Motihari Town P.S. case No.98/81 but after due investigation the police submitted final form dated 22-4-1981 stating therein that the case was false. The opposite party Nagendra Singh filed a protest petition dated 29 4-1981 in the Court of the Chief Judicial Magistrate, Motihari and this was treated as the petition/complaint and the Chief Judicial Magistrate after examining the complainant on Solemn Affirmation, directed the Probation Officer, Motihari by his order dated 5-11-81 to make an investigation under S.202 of the Code of Criminal Procedure and submit his report. The Probation Officer after conducting the necessary investigation submitted his report dated 14-6-82 which was put up before the Chief Judicial Magistrate on 6-7-82. However, the complainant Nagendra Singh filed a petition in the Court of the Chief Judicial Magistrate on 11-6-82 alleging therein that the accused persons (that is the petitioners) were very rich and influential men of Motihari town and the complainant apprehended that the Investigating Officer had gone in collusion with them and that is why he was not submitting his report. Though this petition was filed in the Court of the Chief Judicial Magistrate it was never moved. The Investigating Officer gave a detailed report showing how false statement had been made by the complainant and his witnesses and he accordingly recommended that the petition may be dismissed. The learned Chief Judicial Magistrate, however, after hearing the complaint passed the impugned order whereby he decided to take cognizance and issue summons against the petitioners.

(3.) The impugned order dated 2-2-83 is a detailed one. The reasons given by the Magistrate for not accepting the report of the Investigating Officer are firstly that the complainant in his petition dated 11-6-81 had alleged that the Inquiring Officer had been seen talking with the accused persons who had gone to his residence and that he had gone in collusion with the accused persons and secondly on the ground that the Inquiring Officer, of his own accord, had perused the daily out-door register of the Veterinary Hospital, Motihari and had taken the statement of the Manager of the Madho Talkies Cinema Shri Gopal Prasad, in order to verify the truth or falsehood of the complainant's allegations and the statements of the witnesses. Commenting on this the Chief Judicial Magistrate made the following observations :