NARESH MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application filed under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the order dated 1.7.2006 (Annexure-7) passed by Sri R.N. Tiwari, Chief Judicial Magistrate, Katihar in G. R. No. 125 of 2006 arising out of Amdabad P.S. Case No. 7. of 2006 whereby and whereunder the learned Magistrate was pleased to reject the petition dated 21.6.2006 filed by the Petitioner for staying the execution of non-bailable warrant of arrest issued against him on 13.5.2006 as also for recalling the order of the said date.

(2.) FROM the record it appears that the petitioner happens to be the informant in the above mentioned case which was instituted on 30.1.2006 under Section 25(1-B), 26, 35 of the Arms Act against two persons namely, Baijnath Mandal and Dilip Mandal. In the F.I.R he has alleged that the informant alongwith several other persons caught hold of Baijnath Mandal while Dilip Mandal filed away. On search from the person of Baijnath Mandal a country made pistol was recovered from his possession with a cartridge loaded therein. Another cartridge was recovered from the right pocket of his trouser Baijnath Mandal was brought to Amdabad police station where F.I.R. (Annexure-1) was registered against him under Sections 25(1-B), 26 and 35 of the Arms Act. A seizure list was also prepared showing the recovery of the country mode pistiol with two cartridges in presence of two witnesses who put their signature on the seizure list. Accused Baijnath Mandal was taken into custody by the police. He moved before the Chief Judicial Magistrate, Katihar for grant of bail which was refused. Apprehending some faul play the petitioner (informant) filed a protest petition on 6.2.2006 against the police since he feared that the police may submit a final form in the case in place of the charge sheet.

(3.) THIS order of the learned Magistrate has got no foundation in law. It has to be noticed that still the police is investigating the case and no final form has been submitted. The petitioner happens to be the informant in the case and no criminal case under the Arms Act has been instituted against him on the basis of which any warrant of arrest could have been issued. It further appears that the learned Magistrate has wrongly relied on the alleged occurrence dated 18.1.2006 in which it is alleged that the brother of the informant had tried to commit rape on the wife of one Hari Mandal. The Investigating Officer should have submitted the charge sheet against the accused Baijnath Mandal of the case. Instead of that he has prayed for issue of warrant of arrest against the present petitioner and on the basis of which the learned Magistrate without applying his mind has ordered for the issue of warrant of arrest and has refused to recall or stay the same. Under these circumstances it has been prayed that the impugned order dated 1.7.2006 (Annexure-7) be set aside.