LAWS(PAT)-2012-10-59

NARESH SHARMA Vs. STATE OF BIHAR

Decided On October 10, 2012
NARESH SHARMA Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) Heard Sri Sunil Kumar Singh, learned counsel for the petitioner and Sri Shyam Bihari Singh, learned Addl. Public Prosecutor. Despite the fact that notice was validly served on complainant/Opp.Party no.2 once at the admission stage and secondly at the stage of hearing, even then Opp.Party no.2 has preferred not to appear.

(2.) The sole petitioner, who at the relevant time was a Veterinary Doctor , has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 01.10.2009 passed by the learned Sub Divisional Judicial Magistrate, Naugachia, District-Bhagalpur in Complaint Case No.190 of 2009. By the said order, the learned Magistrate has taken cognizance of offence under Sections 427 and 429 of the Indian Penal Code.

(3.) Short fact of the case is that on 05.07.2008, the complainant/Opp.Party no.2 filed a complaint in the court of the learned Addl. Chief Judicial Magistrate, Naugachia, which was registered as Complaint Case No.396 of 2008 for the offence under Section 269, 270, 271, 429 and 511/34 of the Indian Penal Code disclosing therein that on 07.04.2008, the petitioner in the capacity of Veterinary Doctor had operated a Jersey cow of the complainant due to the ailment in one of the legs of the said cow. During operation, the petitioner had taken Rs.1500/- as operation charge and Rs.700/- was taken for medicine. It was alleged that though the petitioner was a government doctor, he had conducted operation in drunken position. At the time of operation, he was heavily drunk and due to said reason, the operation was not conducted properly and successfully. Despite repeated request, the petitioner did not attend the ailing cow at post operation stage. It was alleged that once the complainant was abused and assaulted by the petitioner. The complaint petition, which was filed by the complainant, was referred to the police under Section 156(3) of the Code of Criminal Procedure for registering F.I.R. and investigating the case and, as such, an F.I.R. vide Bihpur P.S. Case No.250 of 2008 was registered on 01.08.2008 against the petitioner for the offence under Sections 427 and 429 of the Indian Penal Code. While investigation was going on, the complainant apprehended that no fair investigation will be done by the police and, as such, the complainant had filed a protest petition in the court of the learned Addl. Chief Judicial Magistrate. The police after conducting thorough investigation found the case untrue and, as such, final report was submitted on 17.12.2008 as mistake of fact. The learned Magistrate after receipt of final report heard learned counsel for the complainant. Final Report was accepted by the learned Sub Divisional Judicial Magistrate on 18.03.2009 and the protest petition, which was filed earlier, was treated as complaint petition. Thereafter, during enquiry altogether seven witnesses were produced to prove the complaint case and finally by the impugned order i.e. order dated 01.10.2009 the learned Sub Divisional Judicial Magistrate took cognizance of offence, which has been assailed in the present petition.