IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7633 of 2009 Jainath Tiwary, son of Durga Tiwary, resident of Village- Ghariyari Chak, P.S. Mehasi, District- East Champaran. ……Petitioner. Versus The State of Bihar ………………….Opposite Party. For the petitioner :- Mr. Pramod Kumar Pandey, Advocate. For the State :- Ms. Pushpa Sinha, A.P.P. ----------- 3. 04. 01. 2011. Heard. This criminal miscellaneous petition for quashing the F.I.R. as well as entire criminal proceeding arising out of Trial No. 556/97 in connection with Mehasi P.S. Case No. 14/95, by which the Chief Judicial Magistrate, Motihari, has taken cognizance under Section 414 of the I.P.C. and Section 3 of Railway Properties (un- lawful possession) Act. The prosecution case as alleged that on 06. 04. 1995 at 5 P.M. Officer-in-Charge of the Mehsi Police Station along with Chaukidar, Naresh Rai and Constable D. P. Singh raided the lichchi orchard of the petitioner on some secret information and recovered 24 pieces of iron gamla and tin road of the Railway concealed in a ditch. Thereafter, after investigation, charge sheet was submitted and cognizance was taken by the Chief Judicial Magistrate, Motihari. However, criminal miscellaneous petition was preferred against the order taking cognizance which was dismissed on 03.12.1997. However, it is submitted that the court before which case was ordered to send the records before the Railway Magistrate, 2 Narkatiaganj for disposal vide order dated 02. 05. 2005 as the court where the case was pending had no jurisdiction to commence the trial under the aforesaid Section, but the case has not reached during the pending of the petition to the court which had jurisdiction to hear the case and hence the petitioner has been harassed amounting to his suffering that he has already been punished and the case he quashed. However, this Court by order dated 24. 08. 2010 call for a report from the District Judge, East Champaran, Motihari, calling for explanation as to why despite the order of the Judicial Magistrate, Motihari, the case has not been sent to the Railway Magistrate, Narkatiaganj. However, report has been received and it has been reported that letter of the learned Magistrate sent to then the District and Sessions Judge, Motihari, for transfer of the said case to Railway Magistrate, Narkatiaganj and learned Magistrate awaited for the reply from the learned Sessions Judge. The said letter, though, received in office of District Judge as apparent from the letter received register, but the said letter could not be traced out. It has been reported that direction has been issued to the Registrar, Civil Court, Motihari, to fix up responsibility against the erring employee who is responsible for the delay in sending the record to Railway Magistrate, Narkatiaganj at Bettiah. It has further been reported that step has been taken for sending the record to the Railway Magistrate, Narkatiaganj, who has jurisdiction to try trhe case vide Memo No. 7149-50 E, dated 07. 10.2010. 3 Learned counsel for the petitioner however, contends that F.I.R. has been lodged by the Officer-in-Charge. It is further submitted that petitioner has falsely been implicated in this case as false case has been filed due to personal enmity by the Officer-in- Charge in view of the fact that Shri Rajak, Officer-in-Charge prior to the occurrence had forcibly seized a tractor belonging to the friend of the petitioner and refused to release the tractor. A complaint was made against Shri. Rajak before the S.P. to release the tractor and tractor was released on the direction of the S.P. A legal notice was also sent upon Rajak demanding a sum of Rs. 25000/- on ground aforesaid. Hence the petitioner made a written complaint to S.P. about his false implication and a report was called for and Sub-Divisional Officer reported about his false implication. However, charge sheet has been submitted. Hence contends that petitioner has falsely been implicated in this case malafidely to wreck vengeance and further submits that cognizance has been taken in the year 1997 since then the case is pending causes lots of harassment to the petitioner. Having regard to the facts and circumstances of the case, since charge sheet has been submitted and cognizance has been taken on the basis of the charge sheet. However, it is alleged that petitioner has falsely been implicated as the tractor of the friend was seized and the petitioner objected, though, there is no direct nexus as the tractor was seized of the friend of the petitioner. So far report of the S.P. is concerned is not required to 4 be taken at this stage as any investigation by the Police can only be used for contradiction not for other purpose. Moreover, it is well settled provision is not required to be considered either at the stage of trial even side by side quashing such statement made can not be used for the purpose of settling the fact. However, defence of the accused at this stage not by undisputed character can not be dealt and taking into consideration. However, defence of the accused can only be tested at the trial and not at this stage at outset. However, grievance of the petitioner that the case is pending after taking cognizance in the year 1997 and hence the trial court is directed to expedite the trial preferably within a period of six months from the date of receipt of the order for expeditious disposal. With the above observations/directions, the criminal miscellaneous petition is hereby dismissed. m.p. ( Gopal Prasad, J.)