Criminal Miscellaneous No.28703 OF 1998 ----- In the matter of an application under section 482 of the Code of Criminal Procedure. ----- GANGA PRASAD CHOUDHARY son of Uttim Lal Choudhary, resident of village-Ghanghour, P.S.-Babubarhi, Dist-Madhubani. …… ……… Petitioner Versus 1. STATE OF BIHAR 2.Charitar Rai son of late Bhola Rai, resident of village- Ghanghour, P.S.-Babubarhi, Dist.-Madhubani ……… ………Opp.Parties For the petitioner: Mr.Vishwanath Prasad Sinha, Sr.Adv. With Mr.Yugal Kishore and Mr.Sanjay Kumar Singh. For the State: Mrs.Indu Bala Pandey, APP. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------ Rakesh Kumar,J The sole petitioner has challenged the order dated 10.11.1998 passed by the Chief Judicial Magistrate, Madhubani in C.R.No. 36 of 1996/ T. R. No. 1484 of 1998. By the said order the learned Magistrate had taken cognizance of the offence under section 428 of the Indian Penal Code and the case was transferred to the file of Sri S.K. Roy, Judicial Magistrate, 1st Class, Madhubani. The petitioner has also prayed for quashing of the order dated 24.11.1998 passed by the learned Sessions Judge, Madhubani in Cr. Revision no. 1417 of 1998. By the said order the learned Session Judge, Madhubani had rejected the revision filed by the petitioner which was preferred against the order of cognizance dated 10.11.1998. 2. Short fact of the case is that on 26.5.1994 first information report was lodged vide Madhubani P.S. Case no.45 of 2 1994 on the information given by opposite party no.2 for the offence under section 429 of the Indian Penal Code. The informant ( opposite party no.2) had disclosed in his written report before the Officer Incharge that his cow had fallen ill and thereafter he asked the petitioner who, according to the informant, was a village quack, to provide some medicines. Thereafter some tablets were provided by this petitioner. Subsequent to that, the cow of the informant died. On these allegations, the first information report was lodged and the police had investigated the case and during the investigation the body of the cow was sent for post mortem examination. After obtaining report of post mortem and collecting materials during the investigation the police found the allegations against the petitioner as untrue and false. The police, instead of sending the petitioner to face trial, submitted final form and recommended for prosecuting the informant for commission of offences under section 182 and 211 of the Indian Penal Code. In the case final form was submitted on 30.6.1994. However, before submission of final form, the informant on 26.6.1994 filed a protest petition before the court below. The learned Magistrate after accepting final report, kept the protest petition on complaint side and thereafter the complainant was examined on solemn affirmation. In support of complainant’s case, few witnesses were also examined. Finally, by the impugned order i.e. 10.11.1998, the learned Chief Judicial Magistrate, Madhubani took cognizance of the offence under section 429 of the Code of Criminal Procedure and transferred the case to the file of Sri S.K. Roy, Judicial 3 Magistrate, Madhubani for disposal of the case. The learned Chief Judicial Magistrate, Madhubani also ordered for issuance of summons for securing appearance of the petitioner. After the order of cognizance, as advised, the petitioner filed a revision vide Cr. Revision no. 1417 of 1998 which too stood rejected by order dated 24.11.1998. 3. Learned Senior Counsel, Mr. Vishwanath Prasad Singh, questioning the order of cognizance as well as order rejecting the criminal revision petition, submits that on the basis of materials available on the record no case under section 429 of the Indian Penal Code is made out against the petitioner. He has taken me to annexure-2 to the petition, which is a copy of the postmortem report held on the body of the cow of the informant. He has referred to last paragraph of the postmortem report i.e. the opinion of the veterinary doctor, who conducted autopsy and submitted that in the opinion of the doctor, the cow died due to ‘Black Quorter’. Learned counsel further submits that Block Quorter is a disease which affects the brain of cattle. He, therefore, submits that on perusal of the postmortem report it is evident that the cow died due to the disease not due to consumption of tablet which was allegedly provided by this petitioner. He further submits that on the face of the complaint petition as well as postmortem examination report, no offence under section 429 of the Indian Penal Code is made out. He also submits that the allegation was thoroughly investigated by the police and the police after investigation found that the informant had lodged a false case 4 and due to that reason the police had recommended for prosecuting the informant/complainant for the offences under sections 182 and 211 of the Indian Penal Code. He submits that though no material could be brought by the complainant or his witnesses, the learned Magistrate in mechanical manner had passed the order of cognizance. Similarly, he submits that the learned sessions Judge also without application of mind had rejected the Criminal Revision No.1417 of 1998 filed by this petitioner. 4. I have also examined the materials available on the record as well as the impugned order. Prima facie I am satisfied that no offence under section 429 of the Indian Penal Code is made out particularly in view of the postmortem report, which has been brought on record by the petitioner in the present case. Moreover, in this case offence, as alleged, was committed long back on 25.5.1994. Thereafter, the police submitted final form in the year 1994 itself. However, on the basis of protest-cum- complaint petition the learned Chief Judicial Magistrate, Madhubani, had proceeded with the case against this petitioner. The petitioner, aggrieved with the order of cognizance as well as rejection of the revision petition, approached this court while invoking inherent jurisdiction under section 482 of the Code of Criminal Procedure. This court vide order dated 12.4.1999, while admitting the case, directed that further proceeding in the court below in C.R. No.36 of 1996 shall remain stayed in the meantime and the stay is continuing till date. Besides there is no case against 5 the petitioner, I am of the view that after lapse of such a long period, it would not be advisable to direct the petitioner to face trial in the present case in the peculiar facts and circumstances of the present case and, as such, the order dated 10.11.1998 passed by learned Chief Judicial Magistrate, Madhubani in Complaint Case No.36 of 1996 pending in the court of learned Judicial Magistrate, 1st Class, Madhubani as well as the order dated 24.11.19098 passed in Cr. Revision No.1417 of 1998 by learned Sessions Judge, Madhubani, are set aside. Accordingly, the petition is allowed. Patna High Court The 30th March,2010 Md.S./NAFR ( Rakesh Kumar, J.)