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2010 DIGILAW 437 (PAT)

Akhtar Ali v. State Of Bihar

2010-03-22

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. Both petitioners, who are accused in Trial No.92 of 1997, had earlier approached this Court vide Cri. Misc. No.4408 of 1995 for quashing of F.I.R. It has been stated in paragraph-2 of the petition that the said petition was permitted to be withdrawn with a liberty to move after order of cognizance. In this case, subsequently, charge sheet was submitted by the Sub-Inspector of Police and thereafter, Court below by its order dated 28.11.1995 took cognizance of offence under Section 47-A of the Excise Act and transfered the case to the Court of Sri R.S. Sharma, Judicial Magistrate, 1st Class, Motihari for its disposal. 2. Learned counsel for the petitioners has argued, by way of referring to Annexure-6 of the petition, (order dated 6.9.1991 passed in Cri. Misc. No.3194 of 1998 by a Division Bench of this Court) that a Sub-Inspector of Police is not authorized to investigate a case registered under Section 47-A of the Excise Act in view of Section 87 of the Excise Act. Learned counsel for the petitioners submits that in the present case, investigation was conducted by the Sub-Inspector of Police and thereafter, charge sheet was submitted. He further submits that the Sub-Inspector of Police, who had submitted the charge sheet, is not competent to investigate the case. He further submitted that in identical situation, a Division Bench of this Court had quashed the prosecution in Cri. Misc. No.3194 of 1998. 3. I have also perused the order, which is at page-23 of the petition. The order is very much clear which reads as follows : " The cognizance has been taken upon the charge sheet submitted by the Sub-Inspector of Police who is not an Excise Officer as required under Section 87 of the Excise Act. Therefore, in view of this prosecution of the petitioner can not be allowed to continue." 4. In view of Division Bench order of this Court, there is no justification to allow the prosecution of petitioners in the present case. In the present case also, investigation was conducted and charge sheet was submitted by Sub-Inspector of Police. 5. In view of the fact particularly in view of Division Bench order of this Court, order of cognizance in the present case is set aside and petition is allowed.