Full Judgment
2. Short fact of the case is that on 24.12.1997, Sub Inspector of Police recorded Fardbeyan of the petitioner wherein he disclosed that on 05.12.1997 suddenly opposite party nos. 2 ot 5 came at the door of the petitioner and while abusing him they told to remove the wall from the land, which was replied by the petitioner in negative. Thereafter they tried to demolish the wall. However, on intervention of Sarpanch the matter was cooled down but the accused persons after threatening the petitioner returned back. Subsequently, on 09.12.1997 at about nine hours all the accused persons (opposite party nos. 2 to 5) came to his door and from the back portion they entered into the courtyard of the informant and they inflamed the straw hut which was in the courtyard of the petitioner. On alarm being raised by the petitioner, mother of the petitioner as well as other villagers arrived there and the accused persons, thereafter, fled away. In the said fire the petitioner suffered a loss of Rs. 2,000/-. Due to fear of the accused persons he did not go to the O.P. The reason for occurrence between the petitioner and the accused person was old dispute. The petitioner further disclosed that he had sent an application to the Superintendent of Police, Muzaffarpur regarding the occurrence, whereupon the Police had came to the informant. The said Ferdbeyan was recorded at the door of the petitioner.
3. On the basis of the said Ferdbeyan, a Police Case vide Kurhani P.S. Case No. 237 of 1997 was registered on 25.12.1997 for the offences under Sections 449, 341, 436 and 504/34 of the Indian Penal Code against five accused persons which includes opposite party no. 2 to 5. The police, after investigation, submitted final form as accusation made by the petitioner against the accused persons was found untrue and submitted report for prosecuting the petitioner for the offence under section 182 and 211 of the Indian Penal Code. By order dated 12.01.2000, the learned Judicial Magistrate, 1st, Class, Muzaffarupr took cognizance under section 182 and 211 of the Indian Penal Code and directed for summoning the petitioner.
4. Aggrieved with the order of cognizance dated 12.01.2000 passed by learned Judicial Magistrate, 1st Class, Muzaffarpur in Complaint Case No. 1136 of 1998/ Tr. No. 1121 of 2000, the petitioner approached this Court by filing the present petition. On 11.09.2000, while issuing notice to opposite party no. 2 to 5, this Court directed that as against petitioner further proceeding of Complaint Case No. 1136 of 1998/Tr.No. 1121 of 2000 so pending in the court of Judicial Magistrate, Ist Class, Muzaffarpur shall remain in abeyance. Subsequently, on 24.01.2001 the case was admitted for hearing and it was directed that pending disposal of the application in Complaint Case No.1136 of 1998/Tr. No.1121 of 2000 pending in the court of Judicial Magistrate, Ist Class, Muzaffarpur shall remain stayed and order of stay is still continuing. Despite valid service of notice on opposite party no. 2 to 5, they preferred not to appear at the time of hearing of the present petition.
5. Mrs. Soni Srivastava, learned counsel for the petitioner while challenging the impugned order of cognizance, submits that the impugned order is palpably erroneous and illegal. In view of the fact that, in the present case, while investigation was going on, after registration of the F.I.R. in Kurhani P.S. Case No. 237 of 1997, the petitioner apprehending that the police may not do justice with investigation, had filed a protest petition in the court of Sub Divisional Judicial Magistrate, West Muzaffarpur on 12.01.1998 which was subsequently treated as complaint and numbered as Complaint Case No. 1136 of 1998. In the said complaint enquiry had already commenced and after examination of the complainant on solemn affirmation two witnesses were examined in support of the complainant. However, after final form was submitted by the Police, the learned Sub Divisional Judicial Magistrate (West), Muzaffarpur basing on the materials available in the case diary rejected the complaint under section 203 of the Code of Criminal Procedure. The petitioner, thereafter, filed a criminal revision vide Cr. Revision No. 25 of 2000 before this Court against the order of rejection of complaint petition dated 09.12.1999. This Court on being, prima facie, satisfied that the order of rejection of the complaint petition, on the basis of materials in the case diary and the opinion of the Deputy Superintendent of Police, was erroneous and as such by order dated 20.09.2000 allowed the Criminal Revision No. 25 of 2000 and remitted back the matter for passing a fresh order on the basis of the materials in the complaint case. Learned counsel for the petitioner has referred to Annexure-4 to the supplementary affidavit dated 28.07.2000. It was argued on behalf of the petitioner that instead of passing order afresh on the basis of material brought on record, during enquiry conducted in the complaint case, the learned Magistrate entertained an application filed by opposite party no. 2 who was accused in the F.I.R. of Kurhani P.S. Case No. 237 of 1997, Complaint Case No.1136 of 1998 wherein he had prayed for prosecuting the petitioner for the offence under sections 182 and 211 of the Indian Penal Code and the learned Magistrate again by its order dated 12.1.2000 committing serious illegality has taken cognizance of the offence under section 182 and 211 of the Indian Penal Code. It was submitted that the impugned order is completely illegal and erroneous and is liable to be set aside.
6. Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing for the State, has opposed the prayer of the petitioner.
7. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on the record. After going through the materials on record, it is evident that earlier the complaint petition filed by the petitioner after enquiry was rejected by the learned Sub. Divisional Judicial Magistrate (West) Muzaffarpur by its order dated 9.12.1999. The said order was basically passed on the basis of materials available in the case dairy. In the present case in which the petitioner being informant had filed a protest petition and the said protest petition was subsequently treated as Complaint Case No.1136 of 1998. However, the said order dated 9.12.1999 was quashed by this court in Cr.Revision No.25 of 2000 by order dated 20.9.2000 and the matter was remitted back to the learned Magistrate for passing a fresh order on the basis of materials in the complaint case. The learned Magistrate again oblivious of the fact that he was required to pass an order on the basis of materials in the complaint case again entertained a petition filed by accused person of the complaint case and also entertained the report submitted by the investigating officer and on those materials by the impugned order i.e. dated 12.1.2000, he took cognizance of the offences under section 182 and 211 of the Indian Penal Code and directed for summoning the petitioner. The court is satisfied that the order impugned is not sustainable in the eye of law and the same is liable to be set aside.
8. Accordingly, the impugned order dated 12.1.2000 passed by learned Judicial Magistrate, 1st Class, Muzaffarpur in Complaint Case No.1136 of 1998/Tr. No.1121 of 2000 is hereby set aside and the petition stands allowed.