Shakti Pad Sharma And Others vs State Of Jharkhand And Others

Sanjay Kumar Dwivedi, J

This petition has been filed for quashing the order taking cognizance dated 15.05.2018 passed by learned Chief Judicial Magistrate, Bokaro in connection with Protest cum Complaint Petition Case No.1093 of 2015 pending in the court of learned Chief Judicial Magistrate, Bokaro.

The complaint case was filed alleging therein that the prosecution case is based on the written complaint of the O.P.No.2 is interalia that the complainant was an employee of Chimni Bhatta (Bricks) where he is residing in hut constructed at the place including other workers. On 10.09.2015 at night at about 11.30 p.m the petitioners along with 4-5 unknown persons duly armed with various weapons forcibly opened the door of his room and started abusing and assaulting him with lathi causing multiple grievous injuries on his body. It is further alleged that petitioners had also taken away Rs.5,500/- kept in the drawer of the table along with documents relating to his lands, LIC certificate and other documents.

Complainant further stated that he and his brothers are rightful owner of the land and they are in exclusive possession as their ancestral property. It was further stated that there had been proceeding u/s 107 and 144 Cr.P.C. between the parties and the petitioners are agents of Vastu Vihar and company. There is Shram Colony over adjacent lands of the complainant which it claimed to be purchased from the petitioners and on its pressure petitioners had earlier filed a criminal case vide G.R.Case No.1954 /2012 against the complainant which is still pending. The petitioners also used to pressurize the complainant to leave the possession of land.

It is further stated that after the occurrence complainant was taken to Chas P.S. and from there he hospitalized to Sadar Hospital, Bokaro where police taken his signature on blank papers only and he was lying over for some days. Thereafter he came to know that Chas P.S. Case No.423/2015 dated 11.9.2015 u/s 394 IPC was registered against unknown persons. He further alleged that in order to save the petitioners police did not register the case on the statement of his brother who was eye witness of the occurrence.

It is further stated that he came to know that mutation of the land was being done in the name of Vastu Vihar but on enquiry he found false signature on no objection petition of his elder brother then he raised objection and mutation was withdrawn. It is further alleged that in Chas P.S.Case No.423/2015 I.O. has not recorded even the statement of complainant and other witnesses during investigation of the case and finding no any option but to file the present case in the learned court.

Mr. Lukesh Kumar, the learned counsel appearing on behalf of the petitioners submits that the entire family members have been made the accused. He submits that the complaint case was transferred to police under section 156(3) of the Cr.P.C for registration of F.I.R and investigation and subsequently the Final form has been submitted by the police whereby the petitioners have not been sent up for trial and in which the petitioners were not named and the final form has been submitted stating therein that the complainant has not been able to identify any one. He further submits that subsequently on protest petition the learned court has taken cognizance.

Mr. Karamkar, the learned counsel appearing for the O.P.no.2 submits that the case is made out and the learned court has rightly taken cognizance.

The Court has perused the order taking cognizance dated 15.5.2018 and finds that the learned court has accepted the final form and without differing with the same and without giving any reason he has directed to issue summons. Once the final form has been accepted by the learned court and why he is proceeding further a reason is required to be disclosed which is lacking in the case in hand. Moreover, in the cognizance order what has come in the protest petition against the petitioners has not been disclosed. A detail order is not required to be passed in the cognizance order, however, the prima facie materials are required to be disclosed in the cognizance order. It is also true that the learned Magistrate can differ with the final form and can take cognizance and it is also within his domain that on protest petition if the prima facie case is made out, he can proceed further, however, in the case in hand, after accepting the final form without disclosing prima facie materials against the petitioners, the learned court has taken cognizance which is not in accordance with law.

Accordingly, order taking cognizance dated 15.05.2018 passed by learned Chief Judicial Magistrate, Bokaro in connection with Protest cum Complaint Petition Case No.1093 of 2015 pending in the court of learned Chief Judicial Magistrate, Bokaro is set aside.

The matter is remitted back to the concerned court to pass the order afresh in accordance with law.

Cr.M.P.No.2349 of 2020 stands disposed.

I.A. if any also stands disposed of.