NAGESHWAR RAO @ NAGESHWAR PD. ROY & 4 OTHERS Vs. THE STATE OF BIHAR & ANOTHER

JUDGEMENT

(1.) This application under Sec. 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') has been filed by the petitioners for quashing the order dated 15.1.81 passed by the Subdivisional Judicial Magistrate, Bettiah, taking cognizance of an offence under Ss. 147, 148, 149, 323 and 302 of the Indian Penal Code (in short 'the Penal Code') against the petitioners.' In order to appreciate the points raised by the learned counsel for the petitioners it is necessary to narrate some facts of the case. A first information report was lodged before Officer In charge of Chautarwa Police station on 16.1.1979 by Nizamuddin, opposite party no. 2, at Patilar Hospital alleging inter alia, that on the preceding night i.e. on 15.1.1979 at about 8 P.M. as usual Akbar Mian (deceased) and one Zahur Mian were sleeping in a hut in his Batai field, all on a sudden 10 -15 men armed with lathi, Bhala and Farsa surrounded them and started assaulting. It has further been alleged that the informant in the torch light and in the light of a burning lamp (Dibiya) recognised the leader of the gang, petitioner no. 1, and also petitioner nos. 2, 3 and 5. The informant has claimed to have identified some other persons as well on seeing their faces. It has further been alleged that after being injured the aforesaid Zahur Mian any how escaped and fled towards village but the informant and Akber Mian were surrounded and the accused persons made serious assault on the said Akbar as a result of which he succumbed to his injuries on the way to the hospital. Thereafter, it is said that being informed by Zahur Mian villagers came and the informant and his deceased brothers were taken to the hospital where the aforesaid statement was made, on the basis of which the first information report was lodged. A true copy of the first information report is Annexure -1 appended to this application.

(2.) The police after instituting the case took up investigation and examined as many as 14 witnesses including the petitioners and the informant. It appears that during the course of investigation a protest petition was also filed in the court of Subdivisional Judicial Magistrate, Bettiah, adding one more i.e. the name of petitioner no. 4 in the category of accused persons. The protest petition was ordered to be kept on record.

(3.) The police after completing the investigation submitted the final report on 19.4.1979. The learned Subdivisional Judicial Magistrate on 17.3.1980 accepted the final form and ordered for the registration of protest petition filed by the informant treating it as a complaint. Thereafter, it appears that the learned Subdivisional Judicial Magistrate started inquiry in purported exercise of powers conferred upon him under Sec. 202 of the Code. It is relevant to state here that six persons were named as witnesses in the protest petition. During the course of inquiry five witnesses named in the protest petition, namely, Zahur Mian, Nathuni Mian, Hadish Mian, Ram Bilas Choudhary and the doctor were examined. It appears that one of the witnesses Sudhakar Tiwary named in the protest petition could not be examined.