S.J.MUKHOPADHAYA, J. - (1.) THIS application has been preferred by the petitioner to quash the order dated 13th August, 2003, passed by the learned Chief Judicial Magistrate, Ranchi, in Lower Bazar PS Case No. 99 of 2001, corresponding to GR No. 2721 of 2001, whereby the learned Chief Judicial Magistrate,. Ranchi after submission of final report, was pleased to order for issuance of notices to the accused persons to appear before the Court and to show cause as to why they be not summoned for facing trial. The Court below further directed the informant (petitioner) to file requisites for notices to the accused persons.
(2.) THE questions arise for consideration in the present case are : (i) whether it is necessary in law to hear an accused at the time of taking cognizance? and (ii) whether the accused is a necessary party to the present case or not, having been given a notice to show cause by the Court below? Before deciding the issues, it is necessary to notice the relevant facts of the present case. This case arises out of a written report dated 24th September, 2001, given by the petitioner before the police, stating therein, inter alia, that the accused persons, namely, Alok Ghosh, Ashok Ghosh, Kishun Mahli and 3 to 4 other persons entered the office of the petitioner, situated at 11 -A, Purulia Road, Plot No. 1101, Ranchi, after breaking open the lock and took away the valuable articles, lying in his office, including three ceiling fans, ten coil electrical wire and some records of the office. In fact, in the evening at 6.30 hours on 23rd September, 2001 he went to his site and remained seated inside his car, because the main gate of his office was closed. He sent his driver Narayan Prasad, who went through small gate, to bring some necessay documents from the office. Said Narayan Prasad upon reaching the office, found that the accused Alok Ghosh, Ashok Ghosh, Kishun Mahli and 3 to 4 other persons were inside the office and were shuffling the articles. The driver immediately returned back and informed the petitioner and, thereafter, the petitioner along with his driver went to the office and found that the lock was broken and aforesaid accused persons were carrying away the goods from his office. When the petitioner protested, Ashok Ghosh took out a revolver from his pocket, hurled upon the petitioner and asked him to stand quietly. The petitioner out of fear kept quiet and those persons took away all the articles, belonging to the petitioner, by keeping them inside four gunny bags.
(3.) ON the basis of the aforesaid written report, First Information Report was drawn -up and Lower Bazar PS Case No. 99 of 2001 was registered for the offences under Sections 461 and 379 of the Indian Penal Code. The police after investigation, submitted Final Report No. 71/02 on 15th December, 2002, seeking to exonerate the accused persons. The petitioner, thereafter, filed a detailed application in the Court of learned Chief Judicial Magistrate, stating in detail about the materials, which have come against the accused persons, justifying the allegation for taking cognizance against the accused persons of the offences under Sections 461, 379, 448 and 452 read with Sections 34 and 120 -B of the Indian Penal Code and 27 of the Arms Act. Thereafter, the learned Chief Judicial Magistrate passed the impugned order dated 13th August, 2003 and ordered for issuance of notices to the accused persons, asking them to show cause as to why they be not summoned for facing trial.;