CRIMINAL MISCELLANEOUS No.14450 OF 2001
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In the matter of an application under section 482 of
the Code of Criminal Procedure.
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JAHURI SAH son of late Jadu Sah, resident of
Village-Sohma, P.S.-Bithan, Dist.-Samastipur.
....... .......Petitioners
Versus
STATE OF BIHAR ...... .....Opp. Party.
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For the petitioners: Mr. B.N.Sinha ‘Suman’
For the State : Mr.Matloob Ram, A.P.P.
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PRESENT
THE HON’BLE MR. JUSTICE RAKESH KUMAR
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Rakesh Kumar,J. The sole petitioner, while invoking inherent
jurisdiction of this court under section 482 of the Code of
Criminal Procedure, has prayed for quashing of an order dated
28.3.2000 passed by the learned Additional Chief Judicial
Magistrate, Rosera in G.O. Case No.188 of 1999, T.R. No.1007 of
2001. By the said order the learned Magistrate has taken
cognizance of offences under sections 182 and 211 of the Indian
Penal Code.
2. Short fact of the case is that the petitioner had
initially filed a written report before the Officer Incharge Hasanpur
(Bithan) Police Station on an allegation that Suresh Sah and others
had committed offence under sections 420 and 406 of the Indian
Penal Code. On the basis of written report submitted by this
petitioner, a first information report vide Hasanpur (Bithan) P.S.
Case No.132 of 1994 was registered on 23.11.1994. After
registering the first information report, police conducted
investigation and after long delay the police came out with a case
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that the petitioner had made false written report before the police
and the police found that the case lodged by the petitioner was
untrue. Accordingly, final form was submitted on 12.11.1999. In
the final report it was also indicated that the prosecution report for
prosecuting the petitioner under sections 182 and 211 of the Indian
Penal Code was being filed and vide annexure-2 to the petition, a
prosecution report was filed on 12.11.1999 against the petitioner
in the court of Chief Judicial Magistrate, Rosera in Hasanpur
(Bithan) P.S. Case No.132 of 1994. Subsequently, by an order
dated 28.3.2000 the learned Additional Chief Judicial Magistrate,
Rosera took cognizance of offences under sections 211 and 188
(correctly 182) of the Indian Penal Code and directed for issuance
of summons against the petitioner.
3. Aggrieved with the order of cognizance dated
28.3.2000 passed in T.R. No.1007 of 2001/G.O. No.188 of 1999,
the petitioner approached this court by filing the present petition
and it was admitted on 9.7.2002. While admitting the petition,
lower court records were called for which have been received and
are lying with the record of the present case.
4. Mr. B.N.Sinha ‘Suman’, learned counsel
appearing on behalf of the petitioner, while challenging the order
of cognizance submits that the order under challenge is liable to be
set aside on the ground that the learned Magistrate differing with
the final report submitted by the police took cognizance of the
offences against the accused persons against whom the petitioner
had leveled allegation. Learned counsel for the petitioner has
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referred to annexure-3 to the petition, which is a photo copy of the
certified copy of the order dated 3.4.2000 passed in Hasanpur
(Bithan) P.S. Case No.132 of 1994. It was submitted that once a
competent court has treated the case instituted by this petitioner as
true, the petitioner cannot be prosecuted on an allegation for
lodging a false case. It was submitted that it is true that the
cognizance order against the accused persons in the case instituted
by the petitioner was passed subsequent to the order of the present
case, but fact remains that there was truth in the allegation made
by the petitioner and, as such in any event prosecution of the
petitioner in the prosecution report submitted by the police is not
permissible and the same is liable to be set aside.
5. Mr. Matloob Rab, learned Addl. Public
Prosecutor appearing on behalf of the State has opposed the prayer
of the petitioner. However, he has not disputed that in Hasanpur
(Bithan) P.S. Case No.132 of 1994 learned Magistrate differing
with the final report had taken cognizance of the offences.
6. Besides hearing learned counsel for the
petitioner, I have also perused the materials available on the
record. This court is of the opinion that the petitioner cannot be
proceeded with in T.R. No.1007 of 2001, G.O. No.188 of 1999
which has been initiated on the basis of prosecution report
submitted by the police.
7. Since learned Additional Chief Judicial
Magistrate, Rosera has already taken cognizance of the offences in
Hasanpur (Birthan) P.S. Case No.132 of 1994 against the accused
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persons in the case instituted on the written report of the petitioner,
no purpose will be served by allowing the petitioner’s prosecution
in T.R. No.1107 of 2001, G.O. No.188 of 1999.
8. Hence, order of cognizance dated 28.3.2000
passed by the Additional Chief Judicial Magistrate, Rosera in T.
R. No.1007 of 2001, G.O. No.188 of 1999 is set aside and the
petition stands allowed.
Patna High Court (Rakesh Kumar, J.) The 16th August,2010 Md.S./NAFR