- (1.) THIS is an application for quashing the order dated 08.06.2005 passed by Sri Shankar Maharaj, Judicial Magistrate, 1st Class, Dhanbad in Complaint Case No. 1943 of 2004 whereby and whereunder he took cognizance of the offence under section 323,386/34 of the IPC against the petitioners. The petitioners further prayed for quashing the entire criminal proceeding with respect to aforesaid case.
(2.) THE records of this case reveals that a complaint petition has been filed by the complainant ( O. P. No. 2) in the court of learned C.J.M., Dhanbad, which was sent to Dhanbad Bank More Police Station for investigation under section 156 clause(3) of the Cr.P.C. Accordingly, Dhanbad Bank More P.S. Case No. 486 of 2004 instituted under section 323, 363, 386/34 of the IPC against the petitioners. It further appears that after investigation, police submitted a final form. It then appear that a protest petition filed by the complainant (O.P. No. 2). It further appears that vide order dated 6.12.2004, learned Chief Judicial Magistrate accepted the final form on coming to the conclusion that there is no sufficient materials to proceed against the accused. However, by the same order he ordered that the protest petition filed by the complainant (O.P. No. 2) be registered as a complaint case. Thereafter the complainant was examined on S.A. and the case was transferred in the file of learned court below for inquiry. The learned court below inquired into the matter and after considering the materials available on record, come to the conclusion that prima -facie offence under section 323, 386/34 of the IPC is made out; accordingly, he issued process against the accused -petitioners. It is submitted by Sri. R.S. Mazumdar, learned counsel for the petitioner that once the final form has been accepted by the magistrate, it will be deemed that the proceeding against the accused persons in respect of the facts constituting the offence has been closed by the magistrate in a judicial proceeding. It is then submitted that unless the said order passed by the magistrate is set aside by any higher authority, the magistrate is not entitled to take cognizance on the basis of complaint petition or protest petition in respect of same facts constituting the offence as mentioned in the final form. It is further submitted that the complaint petition has been filed maliciously because the complainant had filed a civil suit for specific performance of contract and therefore on the ground of malafide also the order of cognizance is liable to be set aside.
(3.) ON the other hand, Sri. M.B. Lal learned counsel appearing for the O.P. No. 2 has submitted that the point raised by learned counsel for the petitioner has been set at rest by various decisions of Hon'ble the Supreme Court as well as Division Bench Judgment of unified Patna High Court. It is submitted that even after accepting the final report, the magistrate can still take cognizance of the offence upon a complaint and protest petition on the same and similar allegations. It is further submitted that the second point raised by the petitioner is also not factually correct. It is submitted that the complaint petition has been sent to police station for investigation on 3.8.2004 whereas the suit has been filed by the petitioners on 7.9.2004 i.e. after filing of the complaint petition. Thus, it cannot be said that the present complaint petition has been filed as a counter blast to the suit filed by the petitioners. Accordingly, it is submitted that there is no illegality and/or irregularities in the impugned order of the court below.;