CRIMINAL MISCELLANEOUS No.10082 OF 2007 In the matter of an application under Section 482 of the Code of Criminal Procedure ----------- MANJUR ALAM, Son of Late Mohammad Hussain, resident of Village-Nawada, P.S. Barauli, District-Gopalganj --- Petitioner Versus 1. THE STATE OF BIHAR 2. The Sub Divisional Magistrate, Gopalganj -- Opp.Parties. ------------ For the petitioner: S/Sri Satish Chandra Mishra, and Md.Nurul Hoda, Advocates. For the State: Sri Hirday Pd.Singh, A.P.P. -------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J.) The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 21.2.2006 passed by learned Chief Judicial Magistrate, Gopalganj in Case No. C-2/06 (Tr.No.2582 of 2006). By the said order, learned Chief Judicial Magistrate has taken cognizance of offence under Section 188 of the Indian Penal Code. However, it was incorrectly typed as under Section 188 Cr.P.C.. The petitioner has further prayed for quashing of order dated 30.10.2006 passed by learned Addl.Sessions Judge, F.T.C.No.II, Gopalganj in Cr.Revision No.116 of 2006, whereby the learned Addl.Sessions Judge has rejected the revision preferred by the petitioner against the order of cognizance dated 21.2.2006 . 2. Short fact of the case is that Opp.Party no.2, i.e. Sub Divisional Magistrate, Gopalganj filed a complaint in the court of learned Chief Judicial Magistrate, Gopalganj , which was numbered 2 as Complaint Case No.C-2/2006, against the petitioner and others on an allegation of commission of offence under Section 188 of the Indian Penal Code. It was alleged in the complaint case that while a proceeding under Section 144 of the Code of Criminal Procedure was going on and the petitioner had already received notice in the said proceeding, the petitioner along with other accused persons violated the order issued in the proceeding under Section 144 of the Code of Criminal Procedure and started construction work over the land in dispute. After filing of the complaint petition, learned Chief Judicial Magistrate had taken cognizance of the offence under Section 188 of the Indian Penal code, which was incorrectly mentioned as 188 Cr.P.C. 3. Aggrieved with the order of cognizance the petitioner filed a revision before the court of learned Sessions Judge vide Cr. Revision No.116 of 2006. Learned Addl. Sessions Judge, F.T.C.No.II, Gopalganj vide its order dated 30.10.2006 has rejected the revision petition. 4. Aggrieved with the order of cognizance as well as rejection of revision petition, petitioner approached this Court by filing the present petition. 5. Sri Satish Chandra Mishra, learned counsel appearing on behalf of the petitioner, while challenging both the orders has argued that the learned Magistrate at the time of taking cognizance failed to appreciate that merely the petitioner had violated the direction issued in a proceeding under Section 144 of the Code of Criminal Procedure. Learned Magistrate has not appreciated that the petitioner 3 had obstructed or intended to put any injury to any other person. Learned counsel for the petitioner in support of his stand has relied on a Judgment reported in 1992 (1) PLJR 128 ( Sarjug Mahto & Ors Vs. The State of Bihar). It has been submitted that despite the fact that all the points were raised on behalf of the petitioner before the revisional court, the revisional court without appreciating the fact has rejected the revision petition in a mechanical manner. It has further been submitted that in respect of the land in question, title suit is already pending. Learned counsel for the petitioner has referred to Annexure-2 to the petition, which is a copy of the plaint of partition suit filed by one Ahmad Hussain. Learned counsel for the petitioner further submits that subsequently the proceeding, which was initiated under Section 144 of the Code of Criminal Procedure, was also dropped vide Annexure-3 to the petition. Accordingly, it has been prayed to set aside the order of cognizance as well as order of revisional court. 6. Sri Hirday Pd.Singh, learned Addl.Public Prosecutor appearing on behalf of the State, while opposing the prayer of the petitioner, has argued that it hardly a matter as to whether at subsequent stage proceeding under Section 144 of the Code of Criminal Procedure was dropped or not. It has been argued that the allegation in the complaint petition is that during the continuation of proceeding under Section 144 of the Code of Criminal Procedure, the petitioner and other accused persons had violated the order and committed offence under Section 188 of the Indian Penal Code. Accordingly, it has been prayed to reject the present petition. 4 7. Besides hearing learned counsel for the petitioner as well as the State, I have also perused the materials available on record. On the basis of facts enumerated in the complaint petition, the Court is of the opinion that while taking cognizance of offence, learned Magistrate has committed no error. This Court is also not inclined to entertain the present petition due to reason that against the order, the petitioner had already filed a revision before the learned Sessions Judge. The Court is of the opinion that the present petition, which has been filed in the garb of petition under Section 482 of the code of criminal Procedure amounts to second revision, which is barred under Section 397 (3) of the Code of Criminal Procedure. So far Judgment cited by the learned counsel for the petitioner is concerned, this Court is of the opinion that all the facts can be examined at an appropriate stage before the court below. This is not the stage where this Court should interfere with a criminal proceeding. Time without number, it has been reiterated that at the initial or interlocutory stage, the court may refrain for exercising the power under Section 482 of the Code of Criminal Procedure. The petitioner has not made out an exceptional or rarest of rare case warranting exercise of inherent jurisdiction under Section 482 of the Code of Criminal Procedure in his favour. Accordingly, the prayer for quashing of order of cognizance as well as order of the revisional court is hereby refused and the petition stands rejected. In view of rejection of the present petition, the order of stay dated 25.4.2007 stands automatically vacated. It goes without saying that if at appropriate stage a petition 5 for discharge is filed, the learned Magistrate without being prejudiced with this order may examine the same and pass appropriate order in accordance with law. Patna High Court,Patna Dated : the 25th October,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)