CRIMINAL MISCELLANEOUS No.6339 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure --------------- 1. Kamta Prasad Singh 2. Kalika Pd.Singh 3. Raghunath Pd. Singh 4. Devendra Nath Singh, All are sons of Late Ram Bhajan Singh, residents of Village- Kathtar, P.S. Rajpur, District-Buxar -------------- --------- Petitioners Versus 1. The State Of Bihar 2. Rama Shankar Singh, Son of Late Sugriv Singh, resident of Village-Kathtar, P.S. Rajpur, District-Buxar, at present Firojpur, P.S. Bhanwarkol, District- Gazipur ( U.P.) ---- Opp.Parties. -------------- For the petitioners: None For Opp.Party no.2: None For the State: Smt. Pushpa Sinha, A.P.P. -------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J When the case was called out, no one appeared on behalf of the petitioners either to press this petition or to make a prayer for adjournment, nor has anyone come forward to oppose the prayer of the petitioner on behalf of the Opp.Party no.2, though from the records, it appears that Opp.Party no.2 has entered appearance through his advocate. 2. Four 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 6.9.1993 passed by the learned Sub Divisional Judicial Magistrate , Buxar. By the said order, the learned Magistrate has taken cognizance of the offence under Section 420 of the Indian Penal Code and directed for summoning the 2 petitioners. 3. Short fact of the case is that Opp.Party no.2, who is none else but one of the family member of petitioners, filed a complaint petition vide Complaint Case No.647( C) of 1991 on 16.11.1991 in the Court of the learned Chief Judicial Magistrate, Buxar disclosing therein that the complainant and accused persons including the petitioners come from one family. It was alleged that sometime in the year, 1988 , while consolidation proceeding was initiated , dispute arose in between the complainant and petitioners and other accused persons. However, subsequently, as alleged, the four petitioners requested the complainant for executing a deed of agreement, so that dispute in between the parties may be settled and, accordingly, complainant executed a deed. Subsequently, the complainant noticed that the petitioners got a sale deed executed by the complainant by committing fraud. Thereafter, the complainant and the petitioners agreed that the said sale deed will be cancelled, but the petitioners refused and started to create several disputes. On the aforesaid allegation, the complaint petition was filed by the complainant on 16.11.1991 and allegation was made that occurrence had taken place on 25.11.1988. 4. After filing of the complaint petition, the learned Magistrate ordered to trnsfer the complaint petition to the police for its registration of F.I.R. and investigation under Section 156(3) of the Code of Criminal Procedure. Subsequently, an application was filed on behalf of the complainant that the complaint, which was referred to the police, may be withdrawn and transferred to a competent court under Section 3 192 of the Code of Criminal Procedure for enquiry and disposal of the trial. By order dated 5.6.1992 , the learned Magistrate allowed the prayer of the complainant and transferred the case for enquiry and disposal under Section 192 of the Code of Criminal Procedure to the court of the learned Sub Divisional Judicial Magistrate, Buxar. 5. During the enquiry, the complainant was examined on S.A. and in support of the complaint case, altogether three witnesses were examined and thereafter the learned Magistrate by the impugned order,i.e. order dated 6.9.1993 took cognizance of offence under Section 420 of the Indian Penal code against four petitioners. 6. Aggrieved with the order of cognizance, the petitioners approached this Court by filing the present petition. By order dated 1.5.2001 this Court, while directing for issuance of notice to Opp.Party no.2 , observed that in the meantime, coercive steps against the petitioners may not be taken in the above mentioned proceeding and further proceeding may also be stayed. Subsequently, on 24.9.2001, the petition was admitted for hearing and it was directed that interim order dated 1.5.2001 shall continue and the same is still continuing. 7. In absence of either parties, I have examined the materials available on record. On perusal of the entire complaint petition, the Court is satisfied that it was a dispute between the members of one family, which cannot be considered as a dispute leading to initiation of criminal prosecution. Moreover, in the present case, as alleged by the complainant-Opp. Party no.2, the alleged occurrence had taken place long back on 25.11.1988 and thereafter stay of criminal 4 proceeding in Complaint Case No.647(C) of 1991 is continuing since 1.5.2001. 8. On perusal of the record, it is evident that after filing of the complaint petition, the learned Chief Judicial Magistrate under Section 156(3) of the Code of Criminal Procedure had directed the police to register an F.I.R. and investigate the case. The petitioners have brought on record the running certified copy of the ordersheet from 16.11.1991 to 19.1.2000. From the ordersheet, it appears that after the order dated 16.11.1991 , the learned Magistrate in its order dated 12.12.1992 has observed that a petition was filed by the complainant with a request to withdraw the order dated 16.11.1991 and send the complaint for its enquiry under Section 192 of the Code of Criminal Procedure to any competent Judicial Magistrate. The learned Chief Judicial Magistrate accepted the prayer of the complainant and withdrew the order dated 16.11.1991 and transferred the complaint, while exercising the power under Section 192 of the Code of Criminal Procedure, to the learned Sub Divisional Judicial Magistrate, Buxar. 9. I failed to understand that under which provision of the Code of Criminal Procedure, the learned Magistrate was having jurisdiction to recall its earlier order. Once, the learned Magistrate had already passed a judicial order ,while exercising power under Section 156(3) of the Code of Criminal Procedure, directing the police to register an F.I.R. and investigate the case, he was not competent to recall earlier order and send the complaint for its enquiry under Section 362 of the Code of Criminal Procedure . It is made clear that Section 5 162 of the Code of Criminal Procedure puts a restriction on a criminal court to review or recall its earlier order. The learned Chief Judicial Magistrate was not having any inherent jurisdiction, as prescribed under Section 482 of the Code of Criminal Procedure and, as such, the basis of initiation of the present complaint petition was itself without jurisdiction. On merit also, the Court is satisfied that no specific case is made out against the petitioners. 10. In view of the facts and circumstances, as indicated above, this Court is satisfied that the entire criminal proceeding in Complaint Case No. 647(C) of 1991 as well as order of cognizance dated 6.9.1993 is liable to be set aside . 11. Accordingly the entire criminal proceeding and order of cognizance dated 6.9.1993 is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 14th July,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )