- (1.) This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 20-12-2003 passed in O.C.R. Case No. 175/ 2003 corresponding to T.R. No. 592/2004 and all subsequent proceedings thereto, whereby and whereunder the learned Judicial Magistrate, 1st Class, Durnka has taken cognizance against the petitioner under Sections 182 and 211, IPC.
(2.) The facts giving rise to the filing of this application are that the petitioner-informant lodged a written information with the Officer, Incharge of Taljhari P.S. for the occurrence dated 29-6-2003 at about 12 PM for commission of offence of lurking house trespass and theft of the properties from the house of the informant-petitioner by the accused Naresh Panit with some unknown criminals, who took away Rs. 45,000/- in cash and also 20 Jar of Dalda, 25 tins of mustard oil, 50 Kgs. Jeera, 10 dibba of coconut oil and other grocery articles, all amounting to Rs. 25.000/- from his house and grocer, shop and in course of commission of theft, the mother of the petitioner - informant and other members of his family woke up and villagers came and then the thieves fled away and he narrated about the occurrence to the village chowkidar, who also came there. Accordingly FIR was drawn up against the accused and other unknown persons and Taljhari P.S. Case No. 96/2003 was registered under Sections 457 and 380, IPC. The police investigated the case and I.O. recorded the statement of witnesses, who supported the prosecution case and the occurrence committed by the accused persons but the statement of the prosecution witnesses has not been properly recorded by the I.O. of the case and its supervising authority in collusion with the accused persons in order to save the accused from their guilt and submitted final form with the accusation false and also submitted a prosecution report for prosecution of the informant-petitioner under Sections 182 and 211, IPC. On submission of final form, learned Court below took cognizance under Sections 182 and 211, IPC against the petitioner.
(3.) Learned counsel for the petitioner submitted that after submission of final form with accusation false the learned Court below ought to have issued notice to the informant-petitioner before taking final decision on the final form submitted by the I.O., but in the instant case no notice to the petitioner-informant has been issued by the learned Court below after submission of final form and further that petitioner had filed a protest petition but without considering the protest petition and treating it into a complaint case the learned Court below has committed an error of Jaw and this action, on the part of the learned Court below is contrary to the provision of Section 195 Cr. P.C. It was further submitted that a protest petition was filed but learned Court below refused to register protest petition as complaint case and hold enquiry under Section 202 Cr. P.C. and, therefore, the order taking cognizance is bad in law and fit to be quashed.;