D.K.SINHA, J. - (1.) THE petitioners have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. for the quashment of the order impugned dated 24.9.2002 passed in P.C.R Case No. 224 of 2001 whereby and whereunder after enquiry under Section 202 Cr.P.C. on the protest petition of the informant O.P. No. 2 the Addl. Chief Judicial Magistrate, Rajmahal found a prima facie case for the offence under Sections 452/380/34 I.P.C. against the petitioners and accordingly the petitioners were called upon to appear.
(2.) THE prosecution case was that the O.P. No. 2 (Abu Tahir) lodged an F.I.R. vide Rajmahal P.S. Case No. 126 of 2000 against the petitioners, registered under Sections 452/380/436 read with Section 34 I.P.C. alleging inter alia that in the night intervening 3/4th July, 2000 he was awaken by his wife and he spotted that the petitioner Khalil Sk. son of Kamshud Sheikh after entering into his room was holding pistol in one hand and lighting torch by another hand. In the said light the informant claimed to identify the another petitioner Ashu Sheikh of Mianjan tola who broke open the box in his room and both the petitioners took out Rs. 7,000/including silver jewelleries worth Rs. 5,000/and garments worth Rs. 2,000/ - from his box and proceeded from the room followed by the informant to the courtyard where he found the other four named accused petitioners, were spotted and identified in the light of lantern. Yet, the 5th person standing in the courtyard could not be identified. When all the 7 accused proceeded from the courtyard the informant came out and witnessed that the fire broke out in the last room of his house. He raised alarm and the witnesses assembled there who claimed having seen the petitioners running away from the place of occurrence but they did not chase by giving first priority to extinguish the fire. After the fire was finally put out, the informant found that all the articles which were kept in the dwelling room including bed, clothes and cot were burnt. Disclosing the genesis of the occurrence the O.P. No.2 Abu Tahir alleged that he had sold a piece of land as against Rs.10,000/ - to some one but the petitioner Ashu Sheikh was demanding Rs. 5,000/ - by way of Randari tax. The police after investigation submitted final form on 31.3.2001 exonerating the criminal liability of the petitioners. The informant O.P. No.2 having come to know filed a protest petition which was converted into a complaint by the A.C.J.M., Rajmahal and after enquiry under Section 202 Cr.P.C. the impugned order was passed on 24.9.2002 in the following manner: - "From perusal of the protest petition, it transpires that complainant has failed to give exhaustive list of the witnesses. In this way the requirement of the procedure for taking cognizance in a sessions case is not complete. Although, there are some materials on Section 436 I.P.C. also, due to this procedural infirmity accused persons cannot be summoned under Section 436 I.P.C. However, the materials available on the record give sufficient ground for further proceedings under Sections 452/ 380/34 I.P.C. I find and hold that a prima facie case under Sections 452/380/34 I.P.C. is made out against all the accused persons named in the protest petition. Complainant is directed to furnish necessary requisites within ten days. To 5.10.2002 for appearance of the accused.". Learned Counsel appearing on behalf of the petitioners Mr. D.K. Dubey submitted that the Investigating Officer had examined altogether 17 witnesses in course of investigation and it was found that no occurrence as alleged by the informant had taken place. On the other hand, it was gathered by the I.O. that the complainant O.P. No.2 and certain members of his family were accused in the murder case of Asraf Ali and since the petitioners were the close relatives of Asraf Ali, the informant implicated them falsely. The police then having been satisfied recommended that a case, therefore, under Sections 182/211 I.P.C. be instituted against the O.P. No.2.
(3.) THE learned Counsel further subm itted that the prosecution of the petitioners and the cognizance of the offence under Sections 452/380/34.I.P.C. on the basis of the protest petition and after an enquiry under Section 202 Cr.P.C. cannot sustain hence, not maintainable. He relied upon unreported decision of Cr. M. P. No. 1397 of 2005 on 21.3.2006 in which the decision of the Apex Court reported in (2000)1 S.C.C. (Criminal) 275 was quoted. The Apex Court observed therein: - "After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments (Raj Kishore Prasad vs. Slate of Bihar and Ranjit Singh vs. 5tate of Punjab) and on examining the order dated 10.6.1997 passed by the Magistrate we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the First Information Report as accused persons, but not charge -sheeted in the charge -sheet that was filed by the police under Section 173 of the Code of Criminal Procedure. So far as those persons against whom charge -sheet has not been filed, they can be arrayed as "accused persons" in exercise of powers under Section 319 of the Code of Criminal Procedure when some evidence or materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate or while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge -sheet, as has been explained in the latter three Judge Bench decision. Neither of the contingencies has arisen in the case in hand." ;