D.K. Sinha, J. - (1.) THE petitioners 8 in number have preferred this petition under Section 482 Cr.P.C. for quashing of entire criminal proceeding arising out of Complaint Case No. 1156/2003 including the impugned order dated 5.2.04 passed by Shri R.K. Mishra, Judicial Magistrate, 1st Class, Dhanbad.
(2.) A Vakalatnama has been filed on behalf of the O.P.No. 2, Sakuntala Devi suo motu. The brief fact of the case is that O.P.No. 2 Sakuntala Devi filed a Complaint Petition No. 1156/03 as against the petitioners and two others alleging inter alia that in the morning of 8.9.2003 petitioners came to her house armed with sticks and started abusing the complainant and in spite of her protest made they entered into her house and assaulted her. It is further alleged that the petitioners used to call and address her as a Daain for the last two years and it was further threatened that a Daain would not be allowed to live there. On the petition filed earlier by the Complainant O.P.No. 2 a proceeding under Section 107 Code of Criminal Procedure was initiated against the petitioners vide M.P.Case No. 63/03 in the Court of S.D.M., Dhanbad. With reference to the occurrence dated 8.9.2003 it was further alleged that when her husband came to rescue her, he was also assaulted by the petitioners and with the intervention of the witnesses the complainant was rescued from being more assaulted. It was further alleged against the petitioner Gobardhan Mahto that he had snatched the chain from the neck of the complainant made of gold worth Rs. 7,000/ - with extending threat that in case of instituting a case she as well as her husband would be killed. Pronouncing her Daain by the petitioners all the time caused her mental agony and it was difficult for her to live in such a society.
(3.) AFTER the statement of the complainant O.P.No. 2 on solemn affirmation the record was transferred to the another Court and after due enquiry cognizance of the offence was taken by Shri R.K. Mishra, Judicial Magistrate, 1st Class, Dhanbad. After finding a prima facie offence under Section 147, 323, 341 I.P.C. as well as under Sections 3/5 of the Prevention of Witch(Daain) Practice Act, 1999, the cognizance was taken by order impugned against the petitioners. The learned Counsel submitted that there were provisions for only 4 Sections and in the Prevention of Witch (Daain) Practice Act, 1999 but the court below erroneously and in mechanically manner took the cognizance of offence under Section 5 of the Act. After came into being of the Bihar Act, 1999 which extends to whole of the Bihar State, the offences have been made cognizable and non -bailable and cognizance under Section 5 of the said Act is illegal and abuse of the process of Court.;