1 S.B.CRIMINAL MISC. PETITION NO.1120/2006 (Zulfikar Ali Bhutto & Anr. Vs. State of Raj.& Anr.) Date of order : : 07.05.2007 HON'BLE MR. KRISHAN KUMAR ACHARYA, J. Mr.JVS Deora ] Mr.Dhirendra Singh ], for the petitioners. Mr.Ashok Upadhyay, PP for the State. Mr.Vijay Purohit, for the respondent No.2 Heard learned counsel for the petitioners as well as learned Public Prosecutor for the State assisted by learned counsel for the complainant-respondent. Learned Magistrate vide order dated 19.1.2006 took cognizance against the petitioners for offence under Section 447, 427 IPC on the complaint filed by respondent No.2 Iqbal Ali. Learned Magistrate has recorded the statement of complainant and one Jakir Ali and has taken cognizance against the petitioners. The matter was reported to the Police Station Jalore and only case under Section 427 IPC was found to be proved. 2 Thereafter, the complaint was filed against the petitioners. Learned counsel for the petitioners states that this is joint property of the petitioners as well as complainant. The civil suit was also pending. Learned Magistrate has not considered all the material in true perspective and has taken cognizance against the petitioners. It is further contended that learned Magistrate has not recorded the statement of any eye-witness and took cognizance for the offence under Sections 447, 427 IPC against the petitioners. Learned counsel for the respondent-complainant has supported the order of learned Magistrate and stated that partition has already been taken place. The petitioners have encroached on the property of the complainant and also broken pillars. I have considered the rival arguments advanced by learned counsel for the parties and also gone through the order dated 19.1.2006 passed by learned Chief Judicial Magistrate, Jalore. From perusal of the order impugned, it appears that 3 learned Magistrate has taken cognizance against the petitioners merely on the statements of complainant Iqbal Ali and one Jakir Ali. He has not considered any documentary evidence. From the statements, it is clear that complainant as well as Jakir Ali are not eye-witness. The civil suit was also pending. Learned Magistrate has recorded the statement of Jakir Ali under Section 202 Cr.P.C. and statement of complainant under Section 200 Cr.P.C., this concept of learned Magistrate was also not correct. The statement of the complainant as well as other witnesses can be recorded under Section 200 Cr.P.C., therefore, statement of witness Jakir Ali cannot be treated as enqury under Section 202 Cr.P.C.. Learned Learned Magistrate may take the cognizance on the statement under Section 200 Cr.P.C and in proper case, he may postpone the issuance of the process. Looking to all the facts and circumstances of the case, since learned Magistrate has not enquired the matter under Section 202 Cr.P.C. nor considered the complete material in true perspective, therefore, in my considered opinion, the matter requires further enquiry by the learned Magistrate. Accordingly, this misc. petition is allowed and the 4 order dated 19.1.2006 passed by learned Chief Judicial Magistrate, Jalore is quashed and set aside. This matter is remanded back to the learned trial court with a direction that learned Magistrate shall further enquire the matter and after recording the evidence of the complainant and considering the material on record, pass afresh order in accordance with the law. The complainant will appear before the court of learned Chief Judicial Magistrate, Jalore on 6.7.2007. With the aforesaid observations, this misc. petition is disposed of. (KRISHAN KUMAR ACHARYA), J. NK