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Md.Shamim Anwar v/s State Of Bihar


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    Criminal Miscellaneous No.27751 OF 1998

    Decided On, 01 April 2010

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE RAKESH KUMAR

    For the Appearing Parties: Md. Anisur Rahman, S. Kausar Hasan, A.M.P. Mehta, Advocates.



Judgment Text

RAKESH KUMAR, J

(1.) The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 23.11.1998 passed by Sri A.A. Gauri, learned Addl. Chief Judicial Magistrate, Shekhpura in G.R.No.291 of 1998 (Barbigha P.S. Case No.132 /98). By the said order, the learned Magistrate has refused to take cognizance of the offences in the said case and the learned court virtually had accepted the final report submitted by the police.

(2.) The short facts of the case is that the petitioner had given a written information to the Officer Incharge of Barbigha (Shekhopur Sarai) Police Station alleging therein that on 30.4.1998, Opp.Party nos. 2 to 24 had committed theft by way of fishing the fishes from a pond which, according to the petitioner, was settled in his favour. It was also alleged that while committing offence, firings were also made. Accordingly, on the said written report of the petitioner, an F.I.R. vide Barbigha (Shekhopur Sarai) P.S. Case No.132 of 1998 was registered on 1.5.1998 for the offences under Sections 144,447,379 of the Indian Penal Code and 27 of the Arms Act.

(3.) After registering the case, police started investigation. It appears that even during the investigation; the informant appeared before the learned Magistrate through his advocate and prayed for recording the statements of the witnesses under Section 164 of the Code of Criminal Procedure. The petition filed on behalf of the petitioner was entertained. Initially, it was prayed to examine four persons under Section 164 of the Code of Criminal Procedure. However, the petitioner produced two persons and their statements were recorded under Section 164 of the Code of Criminal Procedure. After conducting thorough investigation, the police came to the conclusion that dispute appears to be of civil in nature and, accordingly, final form was submitted by the police on 10.10.1998. From the impugned order, i.e. order dated 23.11.1998, it appears that on the point of acceptance of final form as well as for taking cognizance, argument was advanced by the parties and after hearing the parties at length, by the order dated 18.11.1998 the court fixed 23.11.1998 as the date for orders. Subsequently, on 23.11.1998, order was passed. The learned Magistrate, while refusing to take cognizance, had examined the materials available on the record and evidences collected during the investigation by the police and also examined the submissions, advanced on behalf of the petitioner, who was the informant in Barbigha(Shekhopur Sarai) P.S. Case No.132 of 1998. Before filing of the final form, a protest petition was also filed by the petitioner on 2.9.1998.

(4.) It was submitted by the learned counsel for the petitioner that without conducting any enquiry, the learned Magistrate was not required to reject the petition. On this ground, he has challenged the impugned order.

(5.) Learned counsel for the petitioner has further submitted that even for the time being if it is assumed that the petitioner was not having any authority on the pond in question, or the case relating to theft of fish from the pond was not established, but the allegation regarding firing in the occurrence was not required to be ignored by the learned Magistrate.

(6.) On perusal of the impugned order, it appears that the pond in question was situated in Gairmazurwa land and it was religious pond and settlement for fishing the fishes in the said pond was made. It also transpires that the pond was settled in favour of the petitioner for some period and period of settlement expired on 31.3.1998. The learned Magistrate, after examining the materials available on the record and particularly in view of the fact that the settlement had already expired, came to the conclusion that on the date of alleged occurrence, i.e. 30.4.1998, the petitioner was not having any right over the pond in question. The learned Magistrate has also referred to the order passed by this Court in a Writ petition as well as order passed in L.P.A., which were preferred by this petitioner. The learned court has also recorded that even the Division Bench of this Court, while dismissing the L.P.

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A. of the petitioner, had refused to extend the period of settlement in favour of the petitioner. After discussing the evidences in detail, the learned Magistrate by the order dated 23.11.1998 accepted the final form and rejected the protest petition filed on behalf of the petitioner. (7.) In the facts and circumstances as mentioned herein above, I find no error in the impugned order. Accordingly there is no merit in this petition and the petition stands rejected.
O R







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