IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14618 of 2007 FAKHRUL ISLAM KHAN & ORS Versus STATE OF BIHAR ----------- 4. 19.03.2010 The application is directed against the order dated 7.6.2006 of the learned C.J.M., Darbhanga passed in Lahariyasarai P.S. Case no. 338 of 2003 whereby the cognizance of offence under Sections 147, 148, 426, 323, 341 and 379 of the IPC has been taken against the petitioners and they have been ordered to be summoned for the trial of the offences. The prosecution commenced on the complaint No. 1327 of 20o3 as filed by the complainant Arun Kumar Jha, alleging the aforesaid offences against the four petitioners that he (complainant) has purchased one Katha i.e. 20 dhurs of land pertaining to Municipal Khesra No. 20438 and 20447 and that after purchasing when he went over the land for its measurement and fixing land mark for its boundary, the petitioner No.1 came there and he abused how he (complainant) dared to purchase the land in the area of Mohammedans and he threatened him asking to stop the measurement work and that when the complaint continued with the measurement work he was assaulted at the hands of the petitioners and then his gold chain, wrist watch all valued at Rs. 12, 000/-was snatched and one spade, measurement tape and rope was also snatched. The complaint was sent for institution of F.I.R. Accordingly, F.I.R. was instituted and investigation was done. During investigation, the I.O. recorded the statement of witnesses in paras-17, 18, 19, 22, 23, 24 and 25 of the case diary who stated about occurrence of this case 2 and the case was supervised by Dy. S.P. and S.P. and who also examined about nine witnesses of the locality and on the statement of witnesses they were of the opinion that the complainant had not purchased the land and on some deed of agreement he was trying to come in possession of the land. On consideration of the materials as collected in investigation the police submitted final form exonerating the petitioner. But learned C.J.M. vide his impugned order disagreed with the final form and he has taken cognizance of offence. In the impugned order, the learned C.J.M. has not discussed statement of any witnesses and he has simply stated that statement of any witness or any other material in paragraphs 17, 18, 19, 22, 23, 24 and 25 of the case diary and he simply stated that a prima facie case is made out and hence cognizance was taken and ordered for summoning the petitioners. During hearing the learned counsel for the petitioner referred to Annexure-3 which is a mutation order in respect of some lands including Municipal Khesra No. 20438 as stated in the complaint petition also. The Annexure-3 shows that the land was mutated in the name of one Nazmul Ishlam Khan who is said to be full brother of the petitioner No.1. The learned counsel for the petitioner submitted that Nazmul Ishlam Khan had purchased the land from its owner and thereafter, the land was also mutated in his name. It is also pointed out that the witnesses in the said paragraphs No. 17, 18, 19, 22, 23, 24 and 25 of the case diary have stated in general omnibus manner about the commission of the offence at the hands of the petitioners but those witnesses are not of the locality. It was further submitted that the 3 witnesses examined by the Dy. S.P. and S.P. were of the locality. The learned counsel also submitted that the complainant/informant states that he had purchased the land but there is no sale deed in support of his claim. It was further submitted that the complainant has obtained a Mahadanama i.e. agreement to purchase land from some persons and on the basis of that he tried to take possession of the land which stands mutated in the name of brother of petitioner No.1 and which is in his possession. The learned counsel also pointed out that in the case diary it has been mentioned that some civil litigation is pending between the parties. The learned A.P.P. who appeared for the State does not point out any other material in this matter. Thus, on considering the materials as discussed, I find no sufficient materials to indicate a prima facie case and the learned C.J.M. was not justified in taking cognizance of the offence and summoning the petitioners. In such view of the matters, the impugned order is set aside and the prosecution against the petitioner is quashed. The application is allowed. (C.M. Prasad, J.) Ravi/-