MD. SAFAIT HUSSAIN, MD. SAHADAT HUSSAIN Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) This is an application filed under Sec. 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for setting aside an order dated 16.2.1976, under which the Chief judicial Magistrate had taken cognizance of the offence punishable under Sec. 186 of the Indian Penal Code, against the petitioners and also for quashing of the criminal prosecution pending in the court below. The case against the petitioners was instituted at Paraiya Police Station in the district of Gaya on a written complaint filed by the Block Development Officer of the Paraiya Block, alleging therein that the Block Animal Husbandry Officer of Paraiya had attached the cattle belonging to the petitioner Md. Safait Hussain in a certificate proceeding. The cattle were handed over by the officer concerned to one Barho Dusadh, who has been described as a Gorait of village, Baghi under Paraiya Police Station in the district of Gaya. On the day following Barho Dusadh was taking the cattle to Paraiya Block and it is alleged that the two petitioners, aforementioned, accosted Barho Dusadh and took away the cattle.

(2.) On the basis of the complaint aforesaid the police registered a case vide Paraiya P.S. Case No. 10(1)70 under Sec. 379 of the Indian Penal Code. A copy of the complaint petition, which was treated as the first information report, has been attached to the application as Annexure -1. The police, after investigation, submitted final form and reported the case to be mistake of facts. The Chief Judicial Magistrate by his order dated 16.2.1976 disagreed with the final form and took cognizance of the offence against the petitioners punishable under Sec. 186 of the Indian Penal Code and summoned them to take their trial for the charge alleged. The aforesaid order is under challenge before this Court.

(3.) The counsel for the petitioners has submitted that the impugned order is hit by Sec. 195 of the Code as no complaint was filed before the Chief Judicial Magistrate by a public servant. Sec. 195 speaks that no Court shall take cognizance of any offence punishable under Sec. 186 of the Indian Penal Code except on the complaint in writing of the public servant concerned. In the instant case, the police submitted final form under Sec. 173 of the Code and reported the case to be based on mistake of facts. In other words, there was no valid complaint before the Chief Judicial Magistrate alleging the facts constituting any offence, inasmuch as there was no prayer for taking action against (he petitioner in the final form submitted by the police. It appears that the Chief Judicial Magistrate, being ignorant of the fact that the case was hit by Sec. 195 of the Code, made the following observations to overcome the legal impediment standing in the way for prosecuting the petitioners. The learned Chief Judicial Magistrate has observed as follows in the impugned order: