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2004 DIGILAW 561 (PAT)

Sahic Ekbal Khan v. State Of Bihar

2004-05-20

MRIDULA MISHRA

body2004
Judgment 1. Heard counsel for the petitioners and the counsel for the State. 2. This application under Section 482 Cr. RC. has been filed by the petitioners for quashing the order dated 21.8.2001, passed by the Chief Judicial Magistrate, Motihari by which he has taken cognizance against the petitioners under section 504 of the Indian Penal Code. Prayer has also been made for quashing the order dated 23.9.2003, passed by the 4th Additional Sessions Judge, East Champaran, Motihari in Cr. Rev. No. 408/34 of 2001-2002 by which the order passed by the Chief Judicial Magistrate, Motihari has been affirmed. 3. Facts of the case is that one Sahid Khan lodged a written report on 25.2.2001 before the Officer-in-charge of Motihari Town Police Station for instituting a case under Sections 341, 323, 379/34 of the Indian Penal Code. On the basis of this written report Motihari Town P.S. Case No. 49 of 2001 was instituted against the petitioners. The allegations made in the F.I.R. is that pucca drain and road was being constructed in Lane No. 2 of Mohalla Agarwal from the M.L.A. quota and cutting of the nala was being done by the labourers of the contractor in front of the house of the informant which was opposed by the petitioners and it is alleged that the petitioners started hurling abuses. It is further alleged that on protest of the informant petitioner no. 1 Sahid Ekbal Khan gave a slap and caught hold of his collar and thereafter his brother namely Umar Eqbal Khan took out Rs. 550/- from his upper pocket. His brother restrained him from instituting case on this assurance that the matter will be resolved in Panchayati, but since the matter was not resolved he has instituted this case. The matter was supervised by the Dy. S.P. Motihari, who submitted his report, holding allegation against the petitioners untrue but the- investigating authority submitted final report No. 116/2001 under Section 504 I.PC. which is a non cognizable offence. 4. It has been submitted by the counsel for the petitioners that with regard to the same occurrence an information was given by the petitioner on 18.2.2001 itself at the police station. which is a non cognizable offence. 4. It has been submitted by the counsel for the petitioners that with regard to the same occurrence an information was given by the petitioner on 18.2.2001 itself at the police station. Although Sanha entry was made, but the Officer-in-charge of the police station was reluctant to institute a case subsequently on the direction and intervention of the Superintendent of Police, Motihari, Motihari Town P.S. Case No. 48 of 2001 was instituted. It has been submitted by the counsel for the petitioner that order taking cognizance is without jurisdiction, since the final report disclosed commission of non cognizable offence only. The report should be deemed to be complaint under Section 2(d) of the Cr. PC. Learned Magistrate should have adopted procedure of complaint, before passing order of cognizance. 5. On perusal of the F.I.R., the annexures which have been annexed with the petition as well as taking into consideration the point of law raised by the counsel for the petitioners I find that the criminal proceeding and the order taking cognizance is bad in law and the learned Magistrate has also committed jurisdictional error. Under the circumstances the impugned order dated 21.8.2001, passed by the Chief Judicial Magistrate, Motihari and the order dated 23.9.2003, passed by the 4th Additional Sessions Judge, East Champaran, Motihari in Cr. Rev. No. 408/34 of 2001-2002 is hereby quashed and this application is accordingly allowed.