SURESH KUMAR THAKUR AND ORS. Vs. SMT. DROPADI DEVI

JUDGEMENT

(1.) This criminal miscellaneous application under Sec. 561A of the Code of Criminal Procedure (hereinafter referred as "the Code") was filed by Suresh Kumar Thakur and four others for quashing the order dated 26th November, 1973 passed by Sri K.K. Sharma. Magistrate 1st Class, Sadar, Muzaffarpur, taking cognizance against the petitioners. Their application came for disposal before Hon'ble B.P. Sinha, J. who by his order dated 14 -4 -1976 was pleased to refer the case for decision by a Division Bench. This is how it came to us for disposal. In order to appreciate the points involved in the application it will be necessary to state briefly some facts as mentioned by the petitioners in their application and the supplementary affidavit filed by them on 1 -11 -1976. There was a dispute for possession of some house property in Muzaffarpur town between Tej Narain Thakur, husband of opposite party and his brother Bishwanath Thakur on the one hand and petitioner nos. 1 and 2 on the other which led to a proceeding under Sec. 145 of the Code. Shri S.N. Jha, the learned Magistrate 1st Class, Muzaffarpur by his judgment and order dated the 12th March, 1973 was pleased to declare possession of the petitioners over the said house property and he was further pleased to restrain Tej Narain Thakur and his brother from interfering with the peaceful possession of the petitioners. Since Tej Narain Thakur and his brother Bishwanath Thakur had taken forcible possession of the aforesaid house within two months of the initiation of the 145 proceeding, they were ordered to restore possession of the house to the petitioners. In spite of the said order Tej Narain Thakur and his brother did not comply with the order of the learned Magistrate. Therefore, the petitioners filed a petition for restoration of the said house to the petitioners. Thereupon, the learned Magistrate ordered the Police for restoration of the possession of the said house to the petitioners. Thereafter, Bishwanath Thakur, the brother of Tej Narain Thakur got a criminal case instituted through Dropadi Devi, opposite party, against the petitioners. The opposite party instituted the said criminal case by lodging a complaint petition dated 3rd August, 1973.

(2.) On receipt of the enquiry report the learned Sub -divisional Magistrate did not accept the report and he was pleased to take cognizance against petitioner Nos. 1 and 2 under Ss. 323, 448 and 379 of the Indian Penal Code (hereinafter to be referred as the Code) and transferred it to Shri S.K.P. Verma, Munsif Magistrate for disposal.

(3.) Mr. K.K. Sinha, learned Counsel appearing on behalf of the petitioners has assailed the impugned order on two grounds, namely, (1) that Shri K.K. Sharma, the learned Magistrate himself was not legally entitled to issue summonses to petitioners 1 and 2 and (2) that on the facts and circumstances of the instant case Shri K.K. Sharma, the learned Magistrate has erred in the impugned order for taking cognizance against the petitioners 1 and 2 for the second time. The first cognizance against the petitioners 1 and 2 was already taken by the earlier Sub -divisional Magistrate by his order dated 3rd August, 1973. In our opinion, it will be convenient to deal with point no (1) first. In our view this point has no merit. It is fully conversed by the decision in (1) Sudama Singh V. Kavindra Narain Singh ( : 1973 P.L.J.R. 35). The contention of the learned counsel for the petitioners, however, under point no. (2) is well founded. Reference may be made to the decision in (2) Jago Singh & others -v -The State of Bihar & others, (1973 BBCJ. IV -445) where it was observed by one of us (B.D. Singh, J) that in a case where the complainant was examined on solemn affirmation and the case was sent for enquiry and on receipt of the enquiry report, the cognizance was taken against the accused and transferred to another Magistrate, the second cognizance cannot be entertained. But it was made clear in that decision that the entire proceeding could not be quashed in view of the fact that the cognizance taken on the earlier complaint will be considered valid. In that case reliance was placed on (3) Jamuna Singh and others. V. Bhadai Shah ( : AIR 1964 S.C. 1541) where their Lordships of the Supreme Court in paragraph 13 at page 1545 observed, "Cognizance having already been taken by the Magistrate, before, he made the order, there was no scope of cognizance being taken afresh of the same offence after the Police Officer's report was received."