IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38845 of 2007 RAMDEO YADAV, SON OF LATE DIRPAL YADAV, RESIDENT OF VILLAGE-FATUHA, P.O. AND P.S. KOTWA, DISTRICT- EAST CHAMPARAN…………………………………..PETITIONER. Versus 1. THE STATE OF BIHAR. 2. MANOJ KUMAR, S/O RAMANAND PD. RESIDENT OF VILLAGE-FATUHA(NAWADAH), P.O. + P.S. KOTWA, DISTRICT-EAST CHAMPARAN. ………………………………………….OPPOSITE PARTIES. ----------- For the Petitioner : Mr. Pravin Kumar , Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : None. ----------- 4. 12.12.2008. Through this application the petitioner, one of the F.I.R. named accused of Kotwa P.S. Case No.133 of 2005,has prayed for the quashing of the order dated 18.5.2007, passed therein by the learned Chief Judicial Magistrate, East Champaran at Motihari, whereunder he has taken cognizance under Section 25(1-B)a, 35 of the Arms Act against the petitioner allegedly without applying his mind. The informant, one Manoj Kumar, impleaded herein as O.P. No.2, filed a written report inter alia alleging that he had purchased some lands a decade and a half back and ever since continued to be in peaceful possession thereof but the petitioner and his son with avaricious eyes wanted to usurp the same. It is further alleged that at about 11 A.M. on 28.10.2005 while the informant was on way to purchase medicines, he saw Mithilesh Yadav, the son of the petitioner, - 2 - ploughing his land whereupon he raised protest to such illegal ploughing. It is said that the petitioner annoyed thereby ordered his son to kill the informant who allegedly was pretentious of becoming a hero. Following the father’s orders, Mithilesh leaving his plough went to his field, adjacent to the lands in question and came back with a nalkatua and allegedly with the intention to kill him fired upon the complainant which providentially missed its mark. On the cries raised by the informant villagers rushed and caught hold of Mithilesh alongwith the nalkatua. The production-cum seizure list has been appended as Annexure-2. The submission advanced on behalf of the petitioner is that no offence either under Section 25(1-B) a or 35 of the Arms Act can be said to have been made out against the petitioner on a perusal of the F.I.R. since the alleged nalkatua was neither recovered nor seized from either the person or possession of the petitioner and it would be clear that it was Mithilesh who had used the arms and had been caught with it. Even the production-cum-seizure list (Annexure-2) does not indicate the recovery and seizure from the possession of the petitioner. It was further sought to be submitted that prior to the lodging of the written report on 28.10.2005 in respect of the occurrence which took place on the same date the petitioner had already filed an informatory petition before the Sub Divisional Officer, Sadar, Motihari, on 7.10.2005 against the informant regarding the occurrence. Even the conduct of the Investigating Officer has been put under scanner since he submitted a chargesheet against the petitioner in connivance with - 3 - the informant. The submission advanced by the learned counsel for the petitioner appears to carry force. The learned A.P.P. was not in a position to rebut the submissions advanced by the learned counsel for the petitioner and although O.P. No.2 appeared by filing vakalatnama he was conspicuous by his absence at the time of hearing of this application. Admittedly, the alleged nalkatua was neither recovered nor seized either from the person or from the possession of the petitioner. In the given circumstances, I am compelled to allow this application and quash the cognizance taken against the petitioner. The matter is remitted back to the learned Chief Judicial Magistrate for giving a fresh consideration in the matter. P.S. (Abhijit Sinha,J)