Research › Search › Judgment

Patna High Court · body

2010 DIGILAW 681 (PAT)

Mauji Yadav Alias Mauji Gope v. State Of Bihar

2010-04-08

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar and j. JJ. 1. The petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of the dated 24.2.1998 passed in Bhagwanpur P. S. Case No.1 (2) of 1978. 2. In the year 1978 on the allegation of an occurrence, which had taken place in the month of February 1978, Bhagwanpur P. S. Case No.1 (2) of 1978 was registered for the offence under section 144 of the Indian Penal Code. It was alleged that the petitioners variously armed with deadly weapon had made unlawful assembly. Of course, in the first information report, it was alleged that firing was also opened but the first information report was instituted under section 144 of the Indian Penal Code. After investigation, the police submitted final form. However, a protest petition was filed on behalf of opposite party no.2. Subsequently, after a lapse of about twenty years, by order dated 24.2.1998 the learned Chief Judicial Magistrate took cognizance of the offence under section 352 of the Indian Penal Code and transferred the case to the court of Sri Rajiv Srivastava, Judicial Magistrate for its disposal. 3. Mr. RAM Balak Mahto, senior counsel appearing on behalf of the petitioners, while challenging the impugned order, submits that even on the basis of materials available on the record, no offence is made out. He, by referring to annexure-3 to the petition, submits that final form in the case was received in the court of Judicial Magistrte, Ist Class, Begusarai on 1.2.1978. Order dated 1.2.1979, which was referred to by Senior Counsel Shri Ram Balak Mahto, shows that after final form a protest petition was filed and the court ordered for hearing on protest petition. The learned Magistrate in its order dated 1.2.1979 has also observed that offence is triable by a Bench of Gram Kachahri. He further submits that after the last order i. e. the order dated 1.2.1979 no progress could take place in the proceeding. By referring to Annexure-5 i. e. order dated 24.2.1998, the learned Senior Counsel submits that file of the present case was wrapped with another file and due to that reason, a report was ordered to be submitted against the concerned clerk. Thereafter, by the same order i. e. dated 24.2.1998 the court had taken cognizance of the offence under Sec.352 of the Code of Criminal Procedure. Thereafter, by the same order i. e. dated 24.2.1998 the court had taken cognizance of the offence under Sec.352 of the Code of Criminal Procedure. After the order of cognizance, the petitioner approached this Court by filing the present petition. This petition was admitted for hearing and by order dated 6.8.1999, while admitting the case, this court had directed that further proceedings in Bhagwanpur P. S. Case No.1 (2) of 1978 dated 2.2.1978 in the court below shall remain stayed during the pendency of the case and order of stay is still continuing. He further submits that even for the time being, if it is accepted, though it is vigorously denied, that offence was committed by the petitioner for the offence under Sec.352 of the Indian Penal Code the same is punishable with imprisonment which can be extended to three months or fine of Rs.500/- or both. He submits that for such an allegation after expiry of about 32 years from the alleged date of occurrence, it would not be advisable to direct the petitioners to participate in the said proceeding. 4. No one has appeared on behalf of opposite party no.2. 5. I have also examined the materials available on record and also perused the order of cognizance. 6. Without going into the merit of the case, I am of the view that for such an allegation for which maximum punishment is imprisonment for three months it would not be appropriate to direct the petitioners to participate in the proceeding pursuant to the order of cognizance which was passed on 24.2.1998 directing the petitioners to participate in the proceeding. In the present case, I am of the view that certainly allowing the proceeding to proceed will amount to allowing an abuse of the process of the court. With a view to prevent an abuse of the process of the court, I feel that it is an appropriate case to exercise the exceptional jurisdiction under Sec.482 of the Code of Criminal Procedure. 7. Accordingly, I set aside the order of cognizance dated 24.2.1998 and subsequent proceeding pursuant to Bhagwanpur P. S. Case No.1 (2) of 1978. The petition stands allowed.