Rakesh Kumar, J.
1. Petitioners, while invoking inherent jurisdiction of this Court under Sections 482 of the Code of Criminal Procedure, have prayed for quashing of order dated 7.8.1995 passed by Manoj Shrivastava, Ist Class Judicial Magistrate, Siwan in C.Case No. 550 of 1995/Tr. No. 546 of 1998. By the said order, learned Magistrate has taken cognizance of offence under Section 379 of the Indian Penal Code.
2. The case of complainant as appears from the materials available on record that on the date of occurrence i.e. on 17.4.1991, the accused petitioners variously armed arrived in the field of complainant and by using fire arm as well as explosive substances, the accused persons forcibly looted the wheat of the complainant. It was alleged that immediately after the said occurrence, the complainant rushed to the police, but police refused to lodge the F.I.R. Subsequently, the complainant on 20.4.1991 filed a complaint case vide Complaint Case No. 298 of 1991 against the petitioners. The said complaint was transferred by the learned Magistrate to the police for its registration and investigation under Section 156(3) of the Code of Criminal Procedure. Subsequently, when even after the direction given by the learned Magistrate, the police in connivance with the accused persons was not registering any case, the complainant was constrained to file a protest petition in the court of Chief Judicial Magistrate, Siwan, which was numbered as C550 of 1995. Only thereafter, the police registered a case vide Siwan Muffasil P.S. Case No. 110 of 1991 on 12.7.1991 for the offences under Sections 147, 148, 379, 502(2) and 3, 4, 5 of the Explosive Substance Act and Sections 25, 27 of the Arms Act. Howevedr, after investigation, the police submitted final form considering the case as untrue. The complainant had filed a protest-cum-complaint petition. It appears from the order dated 7.8.1995 passed by Shri Manoj Shrivastava, Ist Class Judicial Magistrate, Siwan in Complaint Case No. C550 of 1995 that the learned Magistrate had examined the complaint, statement of complainant recorded on S.A. and evidence of two witnesses produced in support of the complainant and by the said order, the learned Magistrate took cognizance of offence under Section 379 of the Indian Penal Code.
3. Shri Yogendra Prasad Sinha, learned Counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the learned Magistrate has committed grave error in taking cognizance in the matter particularly on the basis of Annexure-2. He submits that Annexure-2 is simply a protest petition and it does not contain any allegation. He further submits that in absence of disclosure of any allegation in the alleged complaint petition, the said petition cannot be termed as a complaint within the meaning of Section 2(d) of the Code of Criminal Procedure. He submits that in view of absence of any allegation, the learned Magistrate was not at all authorized to take cognizance in the present case. He further submits that the complainant and petitioners are Gotias and there were dispute in between the parties in relation to title over the land. He further submits that since regarding the title over the land, there was dispute in between the parties the allegation of theft under Section 379 of the Indian Penal Code is not applicable in the facts and circumstances of the present case. On these grounds, he has made a prayer to quash the order of cognizance in the present case.
4. In this case, by order dated 12.8.1999, while issuing notice to opposite party No. 2, this Court had directed that till further orders, the further proceedings in Complaint Case No. 550 of 1995/Tr. No. 546 of 1998 in the court below shall remain stayed. Subsequently on 4.12.1999, the case was admitted for hearing. Since at the time of admission, opposite party No. 2 had already appeared the court did not pass any order for issuance of notice. While admitting the case, the court directed that during pendency of this application, interim order dated 12.8.1999 shall continue. However, at the time of hearing of this application, none has come forward on behalf of opposite party No. 2 to support his stand.
5. Shir Parmanand Prasad appears on behalf of the State. He has vehemently opposed the prayer of the petitioners. He submits that at the moment, the learned Magistrate had taken cognizance of the offences. He further submits that order of cognizance makes it clear that learned Magistrate, while passing order, had examined the complaint petition, statement of complainant recorded on solemn affirmation as well as evidence of two witnesses, who were examined in support of the complainant. He further, by way of referring to Section 2(d) of the Code of Criminal Procedure, submits that the definition itself clarifies that even an allegation made orally disclosing commission an offence to a Magistrate can be considered as complaint. Moreover, he submits that the impugned order of cognizance itself indicates that learned Magistrate had perused the statement of the complainant, which was recorded on S.A. and evidences of two witnesses, which were examined on behalf of the complainant and only then the learned Magistrate has taken cognizance of the offence. He further submits that merely on the ground that petitioners and complainant are Gotias and there are land dispute in between the parties, the same cannot be termed as malicious prosecution warranting this Court to quash the same on the said ground.
6. I have examined the materials available on record as well as the impugned order. The impugned order is very much specific on the point that the learned Magistrate before taking cognizance had examined the materials available on record. Moreover, at the time of taking cognizance, the Magistrate is not required to give a detailed description of the allegation in the order. It is the complete satisfaction of the Magistrate on the basis of material available before him disclosing prima facie commission of the offence to further proceed in the case. On perusal of the impugned order, I do not find that there is error in the order of the learned Magistrate. So far as submission advanced by Yogendra Prasad Sinha that the Annexure-2 in absence of disclosure of commission of any offence may not be considered as complaint under Section 2(d) of the Cr.P.C. I am of the view that the learned Magistrate has not proceeded in the present case only on the basis of Annexure-2, but the learned Magistrate has proceeded after examining the statement of the complainant as well as evidence of two witnesses, who were examined in support of the complainant. If the complainant orally makes an allegation for commission of an offence before the Magistrate, the same allegation can be considered as complaint in view of Section 2(d) of the Code of Criminal Procedure. So far as allegation of malafide or malice is concerned, I am of the view that it is very easy to make an allegation of malafide, but at the same time, it is difficult to prove the same and that too at this stage, it would be difficult to examine as to whether the said complaint was filed maliciously or not. All these things can be looked into by the competent court at appropriate stage. While exercising power under Section 482 of the Code of Criminal Procedure unless, exceptional case is made out, it is not appropriate to interfere at initial or interlocutory stage in a criminal case and as such I am of the view that in the facts and circumstances of the present case, it is not advisable to exercise jurisdiction under Section 482 of the Cr.P.C. in favour of the petitioners.
7. While challenging the order of the cognizance except impugned order, copy of F.I.F. and Annexure-2, the petitioners have not brought on record any other material such as statement of complainant, which was recorded on S.A. as well as evidence of two witnesses, who were examined in support of the complaint.
8. Accordingly, I do not find any merit in this petition and petition stands rejected.
9. In this case, order of stay of further proceeding in Complaint Case No. 550 of 1995/Tr. No. 546 of 1998 is continuing since 12.8.1999. In view of rejection of this petition, the order of stay stands automatically vacated.
10. Let a copy of this order be communicated to the court below forthwith.