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2010 DIGILAW 1258 (PAT)

Najeebuddin Ahmad v. State Of Bihar

2010-05-13

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar and j. JJ. 1. The sole petitioner, while invoking inherent jurisdiction of this Court under Sec.482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 12.10.1998 passed by Shri M. M. Siddique, Judicial Magistrate, Katihar in Complaint Case No.829 of 1999. By the said order, the learned Magistrate has taken cognizance of the offences under Sections 323, 348 and 380 of the Indian Penal Code. 2. Short fact of the case is that the opposite party no.2 filed a complaint vide Complaint Case No.829 of 1999 disclosing therein that some dispute regarding Bataidari appertaining to Plot No.602, Khata No.443 was continuing in between the complainant and this petitioner. It was alleged that on the date of occurrence i. e.18.5.1999 at about 9 A. M. , the accused persons, namely, Khalil Khan and Qaiyum Khan forcibly entered into the house of the complainant and thereafter, they said that against his Malik (landlord), why he has filed cases and thereafter, they assaulted the complainant. It was alleged in the complaint petition that accused persons during the occurrence were saying that they will forcibly take away the papers relating to the cases and, thereafter, they forcibly took a box in which the papers/documents of cases were kept. On the aforesaid allegation, the complaint was filed. After filing the complaint, the complainant was examined on S. A. In support of the complaint, two witnesses were examined as enquiry witnesses, who supported the complainants case. After examining the materials available on the record by order dated 12.10.1999, after being satisfied that prima facie case under Sections 323, 448 and 380 of the Indian Penal Code was made out, the Magistrate took cognizance of the offences and directed for issuance of processes for securing the attendance of the accused person. 3. Mr. Raghib Ahsan, learned Senior Counsel appearing on behalf of the petitioner, while challenging the order of cognizance, submits that, on perusal of the entire complaint petition, no offence is made out against the petitioner. He submits that in this case, allegation was that two accused persons assaulted the complainant during the occurrence and thereafter, the said two accused persons had committed the crime of forcibly taking away the box containing papers relating to the cases. He submits that in this case, allegation was that two accused persons assaulted the complainant during the occurrence and thereafter, the said two accused persons had committed the crime of forcibly taking away the box containing papers relating to the cases. Of course, in the complaint petition, it was asserted that the accused persons had threatened the complainant as to why he had instituted the case against his Malik (landlord ). In the complaint petition, there was no whisper that this petitioner was present at the place of occurrence. Learned counsel for the petitioner further submits that the complainant had not made out a case that this petitioner had hatched conspiracy and directed the accused persons to commit the crime. Learned counsel for the petitioner, in course of argument, has produced photo copy of the certified copy of the depositions of two enquiry witnesses as well as statement of the complainant recorded on solemn affirmation. While placing the entire materials, learned counsel submits that not even single word was asserted by any of the witnesses or the complainant that this petitioner was present at the time of occurrence or he had hatched conspiracy for committing the crime. He submits that in absence of any such assertion it was not proper for the learned Magistrate to proceed against this petitioner by way of taking cognizance and to direct for issuance of processes for securing his attendance. He further submits that order of cognizance also does not indicate that the learned Magistrate has taken cognizance of the offence under section 120b of the Indian Penal Code. Accordingly, he has prayed for quashing of the order of cognizance. 4. Mr. A. M. P. MEHTA, learned Addl. Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioner. He submits that from the complaint petition itself it is evident that the accused persons were henchmen of the petitioner and the entire crime was committed as per the instigation of the petitioner himself and, as such, while taking cognizance, the learned Magistrate has committed no mistake. 5. Besides hearing learned counsel for the parties, I have also examined the materials available on record particularly complaint petition, photo copy of certified copy of the deposition and the statement recorded on solemn affirmation. 5. Besides hearing learned counsel for the parties, I have also examined the materials available on record particularly complaint petition, photo copy of certified copy of the deposition and the statement recorded on solemn affirmation. After perusal of entire materials available on the record it is difficult to comprehend as to whether any such allegation was made against this petitioner save and except that two accused persons at the time of occurrence had stated that as to why the complainant had filed cases against his Malik (Landlord)nor there is any assertion that it was the petitioner, who had directed the accused persons to commit the crime. Merely on that basis of the fact that the accused persons while committing the crime had disclosed the fact as to why complainant had filed cases against his Malik (landlord) as indicated above, it cannot be said that this petitioner had participated in the crime and committed the offences under sections 323, 448 and 380 of the Indian Penal Code. In absence of any material indicating involvement of this petitioner, it would not be proper to allow the proceeding to continue against this petitioner. In view of the facts and circumstances mentioned hereinabove, it is desirable to exercise inherent power in favour of the petitioner. 6. Accordingly, order of cognizance dated 12.10.1999 is hereby set aside and the petition stands allowed.