(1.) IN this petition, an interesting legal question that the complaint disclosed no cognizable offence and as such, no investigation could have been conducted in the matter by the police without the order of the Magistrate, having jurisdiction to try the case has been brought to this Court with a prayer to set aside the FIR and also the order dated 30.6.2012 passed by learned Judicial Magistrate 1st Class Court No. (V), Shimla, summoning thereby the accused -petitioner in the case after being satisfied. This Court need not go into the past history and dispute between the accused -petitioner and the 2nd respondent in respect of a piece of land they purchased jointly in the year 2000 at Mauza Rehal Baichari, Tehsil and District Shimla and the dispute having arisen between them with regard to the house constructed thereon, being not relevant to decide the present controversy.
(2.) LEARNED Counsel representing the accused -petitioner during the course of arguments canvassed that complaint dated 29.08.2011 lodged by the 2nd respondent against the petitioner in Police Station, Sadar, Shimla, on the basis whereof FIR Annexure P -5 under Sections 341 and 323 IPC has been registered, does not disclose the commission of any cognizable offence and as such, the investigating agency should have not conducted any investigation without seeking order from the Magistrate concerned having jurisdiction over the matter. It has also been pointed out that otherwise also, no evidence is available on record to establish even prima -facie the commission of offence under Sections 341 and 323 IPC by the petitioner.
(3.) LEARNED Additional Advocate General has also contended that the present is not a case where this Court in the exercise of inherent power vested in it under Section 482 Cr.P.C. should quash the FIR as well as the order passed by the learned Magistrate, whereby the petitioner has been booked for the commission of an offence punishable under Sections 341 and 323 IPC.