IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.10475 of 2008 1. Maqsood Alam, son of Md. Ashique. 2. Mehfooz Alam, son of Md. Ashique. 3. Guddu Khan @ Guddu Mian, son of Mukhtar Khan. 4. Tripathi Singh, son of Late Raj Narayan Singh. All resident of village-Goondi, Police Station-Krishnagarh, District-Bhojpur. ……………………………………………………Petitioners. Versus The State Of Bihar…………………………Opposite Party. ---------------------------------- For the Petitioners : M/s. Ashok Kumar Sharma & Brajesh Prasad Gupta, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ----------------------------- 4. 14.9.2011. Heard learned counsel for the petitioners and the learned A.P.P. for the State. This application, under Section 482 of the Code of Criminal Procedure, is for quashing the order dated 15.11.2007 passed by the Chief Judicial Magistrate, Ara, in Barhara (Krishnagarh) P.S. Case No.116 of 2007, whereby the learned Chief Judicial Magistrate, Ara, took cognizance of the offence under Sections 341, 323, 325 and 504/34 of the Indian Penal Code besides Sections 25(1)(E) and 35 of the Arms Act, against the petitioners. In brief, the prosecution case is that on the basis of 2 the fardbeyan of the informant, Sadhu Mian, Barhara (Krishnagarh) P.S. Case No.116 of 2007 was instituted on 9.6.2007 under Sections 341, 323 and 504/34 of the Indian Penal Code. The case of the informant is that he had guava and mango orchard in the north of the village-Goondi, for which the litigation was going on since before with the petitioner no.1, Maqsood Alam. On 9.6.2007 at about 9.00 A.M., he came to know that the petitioner no.1 alongwith some others were plucking guava from the disputed orchard. Then, he and his brother, Wakil Mian, rushed there and saw that the petitioner no.1 was standing there, the petitioner no.2, Mehfooz Alam, petitioner no.3, Guddu Mian and petitioner no.4, Tripathi Singh, of village Goondi were also there. When the informant protested to pluck the mango from the orchard, then they started abusing him and when he objected the same, the petitioner no.1, Maqsood Alam, assaulted him with lathi causing blood injury on his nose and thereafter, petitioner no.2, Mehfooz Alam, assaulted his brother, Wakil Mian, by means of lathi on his head causing blood oozing injury. It is further alleged that the petitioner no.1, Maqsood Alam, petitioner no.3, Guddu Alam and petitioner no.4, Tripathi Singh also came there one by one 3 armed with lathi and assaulted the informant and his brother. In that course, petitioner no.3, Guddu Mian and petitioner no.1, Maqsood Alam, also sustained injury. Learned counsel appearing on behalf of the petitioners submits that from perusal of the F.I.R., it is apparent that there was occurrence of ‘Maar-Peet’ by using lathi, without using any firearms but the learned Chief Judicial Magistrate took the cognizance of the offence under Section 25(1)(E) and 35 of the Arms Act in addition to Sections 341, 323, 325 and 504/34 of the Indian Penal Code. It is also submitted that in the Arms Act, 1959, there is no provision of clause ‘(E)’ of Section 25(1) and the learned Chief Judicial Magistrate took the cognizance of the offence for aforesaid section in a mechanical way. Learned A.P.P. for the State submits that in the Arms Act, 1959, there is no provision of clause ‘(E)’ of Section 25(1) , moreover, on going through the case diary, it appears that the case was of simple ‘Maar-Peet’ by using lathi and none of the witnesses have stated about using the firearm in the alleged occurrence. It is also submitted that only in the supervision note the production-cum-seizure of fire arm has come, which is without any basis. 4 From perusal of the F.I.R. , it is itself clear that the occurrence was of simple ‘Maar-Peet’ by using lathi. In the Arms Act, 1989, there is no provision of clause ‘(E)’ of Section 25 (1) rather the provision is Section 25(1)(e). As such, the offence under Sections 341, 323, 325 and 504/34 of the Indian Penal Code, prima facie, are made out against the petitioners and the offence under the Arms Act is not made out against the petitioners and, therefore, the taking of cognizance of the offence under the Arms Act against the petitioners is an abuse of the process of the Court. Accordingly, the order dated 15.11.2007 taking cognizance of the offence under Section 25(1)(E) of the Arms Act against the petitioners is hereby quashed and the application is allowed to that extent only. However, the case in respect of other offences under the Penal Code appears to have been made out against the petitioners and the trial will continue in that regard. P.S. (Rajendra Kumar Mishra, J)