Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.12455 of 2009 ====================================================== 1. Abdul Hai 2. Md. Kalam @ Abul Kalam, both sons of Late Sidique 3. Rajia Khatoon @ Rajia Pravin wife of Abdul Hai 4. Nahida Pravin @ Nahida Saba, daughter of Abdul Hai 5. Gulsan Khatoon @ Gulsan Ara wife of Md. Kalam All residents of Village-Khairi Banka, Police Station- Bisfi, District-Madhubani .... .... Petitioners Versus 1. The State Of Bihar 2. Mustaque Ahmad, Son of Late Amir Hassan, @ Aquil Ahmad, resident of Village- Khairi Banka, P.S. Bisfi ( Ausi), District- Madhubani .... .... Opposite Parties ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER ---------------- 4 10-04-2012 Heard Sri Chandra Bhushan Das, learned counsel for the petitioners and Sri Anuj Kumar Srivastava, learned Addl. Public Prosecutor. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 09.02.2009 passed by the learned Chief Judicial Magistrate, Madhubani in Bisfi P.S. Case no.173 of 2008 , G.R. No.1916 of 2008, whereby the learned Magistrate has taken cognizance of offence under [STATUTE] against the petitioners, who were not sent up for trial by the Investigating Agency and also against one person, who was forwarded by the Patna High Court Cr.Misc. No.12455 of 2009 (4) dt.10-04-2012 2 / 4 2 police vide Annexure-2 to the petition, i.e. Chargesheet. Learned counsel for the petitioners submits that though the petitioners were named in the F.I.R. along with Hussain Ara, during the investigation nothing was found showing their involvement and, as such, while submitting chargesheet against accused Hussain Ara, the Investigating Agency exonerated all the petitioners. The learned Magistrate, thereafter, by the impugned order has taken cognizance of offence, as mentioned above, against all the accused persons, who were named in the F.I.R. ignoring the final report. It was submitted by learned counsel for the petitioners that the learned Magistrate, while differing with the police report, had not even indicated any reason for summoning the aforesaid petitioners. Learned Addl. Public Prosecutor is not in a position to dispute the fact that the learned Magistrate has not assigned any reason nor had discussed any material available in the case diary, while differing with the police report and summoning the petitioners as accused. In this case by order dated 04.10.2010 notice was directed to be issued to Opp.Party no.2 and at the same time, this Court had directed that in the meanwhile, operation of the impugned order dated 09.02.2009 passed in G.R. No.1916 of 2008 Patna High Court Cr.Misc. No.12455 of 2009 (4) dt.10-04-2012 3 / 4 3 by the learned Chief Judicial Magistrate, Madhubani shall remain stayed. Besides hearing learned counsel for the parties, I have also perused the materials available on record. It is true that all the petitioners were named as accused in the F.I.R. i.e. Bisfi P.S. Case no.173 of 2008 registered for the offence under [STATUTE] . However, fact remains that the Police, while submitting chargesheet against one of the accused, namely, Hussain Ara, exonerated the petitioners. Thereafter, the learned Magistrate has passed the impugned order. It is true that the learned Magistrate was competent to take cognizance differing with the police report , but at the same time before differing with the police report it was required on the part of the Magistrate to succinctly assign reason for differing with the police report, but no reason has been assigned and, as such, the order impugned is liable to be set aside . Accordingly , the order dated 09.02.2009 passed in Bisfi P.S. Case no.173/08 , G.R. No.1916 of 2008 by the learned Chief Judicial Magistrate, Madhubani is hereby set aside and the matter is remitted back to the learned Magistrate for passing fresh order after examining the materials available in the case diary, if the learned Magistrate prefers to proceed against the petitioners. Patna High Court Cr.Misc. No.12455 of 2009 (4) dt.10-04-2012 4 / 4 4 With above observation and direction, the petition stands allowed. NKS/- (Rakesh Kumar, J)

Applicable IPC Section: 448

Statute Text:
Section 448 of the Indian Penal Code. House-trespass. Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.