Dinesh Vadiwala @ Dinesh Badiwala Vs. State of Bihar and anr. - Court Judgment

Excerpt:
indian penal code (ipc) - section 506 - punishment for criminal intimidation -- various documents were filed by mr. anupam priyadarshi before the police including the notice dated 24.3.2001 written by mr. ranjit sahay, advocate and application of anupam priyadarshi dated 27.4.2001 (annexure - 1 series). learned chief judicial magistrate has taken cognizance on the basis of police report. the police made enquiry and filed a report dated 17.9.2001 in the court of chief judicial magistrate for instituting a case against the petitioner for offence punishable under section 506 i.p.c. the main contention of the learned counsel for the petitioner is that anupam priyadarshi had only made apprehension against the petitioner and from annexure- 1/a no cognizable offence is made out against the petitioner. it is also agreed by anupam priyadarshi that the present police case will also be compromised with legal advices. 1. this application has been directed against the order dated 21.9.2001 passed by the learned chief judicial magistrate, patna in case no. 1412(2) of 2001 by which the cognizance has been taken against the petitioner for the offence punishable under section 506 i.p.c. 2. the facts giving rise to the present case is that a written complaint dated 17.9.2001 was filed before the chief judicial magistrate by sub-inspector of police, gandhi maidan police station alleging therein that during the course of enquiry of an application dated 27.4.2001 filed by anupam priyadarshi it transpires that anupam priyadarshi was subjected to criminal intimidation by mr. ranjit sahay, advocate, patna high court by his legal notice dated 24.3.2001 written on behalf of the petitioner. various documents were filed by mr. anupam priyadarshi before the police including the notice dated 24.3.2001 written by mr. ranjit sahay, advocate and application of anupam priyadarshi dated 27.4.2001 (annexure - 1 series). learned chief judicial magistrate has taken cognizance on the basis of police report. 3. learned counsel for the petitioner submits that anupam priyadarshi filed a written information dated 27.4.2001 (annexure- 1/a) to the officer-in-charge, gandhi maidan police station praying therein to make enquiry and to give protection to avoid the attempt of the petitioner to make mental and physical loss to him and the members of his family. the police made enquiry and filed a report dated 17.9.2001 in the court of chief judicial magistrate for instituting a case against the petitioner for offence punishable under section 506 i.p.c. 4. the main contention of the learned counsel for the petitioner is that anupam priyadarshi had only made apprehension against the petitioner and from annexure- 1/a no cognizable offence is made out against the petitioner. in view of provision under section 155 cr.p.c. the police was not required to investigate the case which is on the face of record was a non-cognizable offence. the police has gone beyond its jurisdiction and has filed a petition dated 17.9.2001 (annexure-1) before the learned chief magistrate for taking cognizance against the petitioner for the offence under section 506 i.p.c. and accordingly the learned magistrate has also not gone into the merit of the case and has taken cognizance by the impugned order. 5. it is further submitted that there has been an amicable settlement between the petitioner and anupam priyadarshi, one of the franchises of asian sky shop at patna and accordingly a memorandum of understanding has been prepared and signed by both the parties on 16.8.2002 and anupam priyadarshi has agreed that all the cases (civil & criminal ) arising out of this dispute will be compromised and withdrawn in legal frame, as advised by the lawyer of both the parties. it is also agreed by anupam priyadarshi that the present police case will also be compromised with legal advices. since all the disputes have been compromised, there is no necessity of prolonging this case. 6. the memorandum of understanding has been filed by way of supplementary affidavit and marked as annexure-2 and the receipt showing payment of demand draft of rs.1,32,525/-,( state bank of india drawn in favour of anupam priyadarshi) to anupam priyadarshi from ranjeet sahay, advocate on 12.9.2002 has been marked as annexure-3. 7. learned a.p.p. for the state could not controvert the contention of learned counsel for the petitioner. 8. after hearing learned counsel for both the parties and on perusal of materials on record, it appears that the contention of learned counsel for the petitioner is correct. the police has acted in contravention of provision contained in section 155 cr.p.c. the police was not required to investigate a non-cognizable offence which is apparent on the face of record. learned magistrate has taken cognizance on the basis of the report of police without going into the merit of the case. accordingly, the cognizance taken by the learned magistrate vide impugned order is not fit to be sustained. the impugned order is set aside. 9. in the result, this revision application is allowed.