IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.[SECTION]1111 of 2017 Arising Out of COM PLAINT CASE No. -656 Year- 2016 District- SUPAUL 1. [ENTITY] son of Late Jan Mohammad Ansari, 2. [ENTITY] son of Late Jan Mohammad Ansari, 3. [ENTITY] son of Late Jan Mohammad Ansari, [SECTION]. [ENTITY] W/o [ENTITY], 5. [ENTITY] w/o Md. Subhan Ansari, 6. [ENTITY] Son of [ENTITY], R/o Village- Momin Tola, P.S.- Kishanpur, District- Supaul. 7. [ENTITY] Son of Late Rahmat Ansari, R/o Village- Supaul Ward No. 16, Kharail Purnwas, P.S.- Supaul, District- Supaul. Petitioners Versus 1. The [ENTITY] . 2. [ENTITY] Son of Fochai Ansari, R/o Village- Momin Tola, Ward No. 2, P.S.- Kishanpur, District- Supaul. Opposite Parties Appearance : For the Petitioner/s : [ENTITY], Advocate [ENTITY], Advocate For the State : Mr. [ENTITY], APP For the Complainant : Mr. [ENTITY], Advocate CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date: 20-0[SECTION]-2018 Heard learned counsel for the petitioners and learned counsel appearing for the complainant/opposite party no. 2 2. This application under [SECTION] of the [ACT]re (for short [ACT]) has been filed by the petitioners for quashing the order dated 09.02.2017 passed in C. A. Patna High Court Cr.M isc. No.[SECTION]1111 of 2017 dt.20-0[SECTION]-2018 2/9 [CASE NUMBER] by the learned Chief Judicial Magistrate, Supaul by which he has summoned the petitioners to face trial for the offences punishable under [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] (for short [ACT]). 3. The case of the complainant as per the complaint is that on 11.08.2016, the opposite party no. 2 filed a complaint petition in the court of learned Chief Judicial Magistrate, Supaul in which he has stated that petitioner no. 1 [ENTITY] is a PDS dealer and has not distributed food grains and kerosene oil to the beneficiaries including him since the month of February and sold out the same in black market. He has further alleged that since a complaint in this regard was made to the Mukhiya of the Panchayat, namely, [ENTITY] and having learnt the same, the petitioner no. 1 [ENTITY] became annoyed and because of that on the date of occurrence all the accused persons being variously armed with deadly weapons entered into the courtyard of the complainant and started hurling filthy abuses. Upon exhortation made by petitioner no. 1 [ENTITY], all other accused persons assaulted the informant. They also snatched Rs.10,000/- from the pocket of opposite party no. 2 on the point of pistol. The accused persons took away ornaments, clothes, mobile phone, etc. also. It has also been alleged that a panchayati was convened but Patna High Court Cr.M isc. No.[SECTION]1111 of 2017 dt.20-0[SECTION]-2018 3/9 even in the panchayati, no solution could emerge. Thereafter, the complainant moved to SHO, Kishanpur Police Station, but he advised him to file complaint in the court. [SECTION]. On the basis of aforestated allegations made in the complaint filed under [SECTION] of the [ACT], learned Magistrate took cognizance of the offences under [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] in exercise of the powers under [SECTION] of the [ACT] and proceeded for inquiry under [SECTION] of the [ACT]. 5. In course of inquiry, statements of altogether four witnesses including the complainant were recorded whereafter the petitioners were summoned to face trial for the offences under which prima facie case was found to be made out. 6. Assailing the impugned order dated 09.02.2017, learned counsel for the petitioners submitted that the statements of the complainant and witnesses are not consistent. They have tried to maliciously prosecute the petitioners in a false and concocted case. He submitted that from the deposition of the witnesses, it would be manifest that though the occurrence is said to have been committed on 29.07.2016, the complaint has been filed after a sufficiently long time on 11.08.2018 for which no valid reason was given. Lastly, he submitted that opposite party no. 2 is Samdhi of petitioner no. 1 as marriage of his daughter, namely, [ENTITY] was solemnized Patna High Court Cr.M isc. No.[SECTION]1111 of 2017 dt.20-0[SECTION]-2018 [SECTION]/9 with the son of the complainant, namely, [ENTITY]. Since daughter of petitioner no. 1 was being tortured due to non-fulfillment of demand of dowry and was ousted from her matrimonial home, she had lodged an FIR vide [CASE NUMBER] under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] with 3[SECTION] of the [ACT] and 3 and [SECTION] of the [ACT] on 05.08.2016 against her husband as well as in-laws and in order to put pressure and blackmail the daughter of petitioner no. 1, the complainant (opposite party no. 2) after institution of the aforesaid [CASE NUMBER] filed the instant complaint against the petitioners. 7. Per contra, learned counsel appearing for the complainant (opposite party no. 2) submitted that there is no truth behind the allegation that the complaint has been instituted maliciously. He submitted that it is true that the petitioner no. 1 is Samadhi of the complainant but it does not mean that the complainant would be debarred from filing a complaint against his own Samadhi even if he has committed offences punishable under the penal code. According to him, petitioner no. 1, a PDS dealer, had defaulted in delivering food grains among the local persons including the complainant for the last six months and for that reason on the basis of complaint of the complainant, his license had also been cancelled. He submitted that the witnesses examined in course of Patna High Court Cr.M isc. No.[SECTION]1111 of 2017 dt.20-0[SECTION]-2018 5/9 inquiry conducted under [SECTION] of the [ACT] have fully supported the case of the complainant and, thus, no illegality can be found with the order passed by the court below whereby the petitioners have been summoned to face trial. 8. In reply, learned counsel for the petitioners submitted that the order of cancellation of licence of PDS dealership of the petitioner no. 1 on the basis of complaint of the complainant was challenged before this Court and vide order dated 02.05.2017 passed in [CASE NUMBER], a Bench of this Court had already set aside the order of cancellation of licence passed by the Sub- divisional Officer holding therein that the decision was taken without application of mind. 9. I have heard learned counsel for the parties and perused the record. 10. It has rightly been pointed out by the learned counsel for the petitioners that from the deposition of witnesses, it would be manifest that the alleged occurrence of hurling abuses by the accused persons and causing assault, etc. had taken place on 29.07.2016. Though a vague statement has been made that a panchayati was also convened, no date of panchayati has been mentioned. Similarly, though it is stated that the complainant had gone to the police station to lodge FIR but he was advised to file complaint, neither any date of Patna High Court Cr.M isc. No.[SECTION]1111 of 2017 dt.20-0[SECTION]-2018 6/9 visiting the police has been mentioned in the complaint nor there is any material to suggest that he had ever approached the police for institution of FIR before filing the complaint. It is admitted by the complainant that the complaint was filed belatedly. However, I do not find any plausible explanation for instituting the complaint after a delay of more than 12 days as occurrence of offence had allegedly taken place on 29.07.2016, but the complaint was filed on 11.08.2016
. I also find force in the submission of learned counsel for the petitioners that the complaint has been filed just in retaliation of the police case instituted by the daughter of the petitioner no. 1, namely, [ENTITY] against the complainant and others. It would be manifest from the FIR as contained in Annexure-2 to the present application that [ENTITY] had instituted [CASE NUMBER] inter alia under [SECTION] of the [ACT] and [SECTION] and [SECTION] of the [ACT] on 05.08.2016 against the complainant, his son and other family members and after a lapse of five days, the instant complaint has been filed on 11.08.2016. Apparently, the criminal proceeding has been launched maliciously by the complainant in order to put pressure on the daughter of petitioner no. 1 who has lodged a case prior in time. Another important aspect in the present case is that there is allegation that the accused persons were variously armed with deadly weapons and they Patna High Court Cr.M isc. No.[SECTION]1111 of 2017 dt.20-0[SECTION]-2018 assaulted the informant on exhortation made by the petitioner no. 1, but no medical report has been filed with the complaint. It is not even stated as to whether the informant was taken to any doctor for treatment.
11. [SECTION] of the [ACT] reads as follows:-
"[SECTION]82. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
12. [SECTION] of the [ACT] envisages three circumstances under which the inherent jurisdiction may be exercised :-
(i) to give effect to an order under the [ACT];
(ii) to prevent abuse of the process of court;
(iii) to otherwise secure ends of justice.
13. In [PRECEDENT], the Supreme Court observed that even though the inherent jurisdiction of the High Court under [SECTION] is very wide, it has to be exercised sparingly, carefully with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and Patna High Court Cr.M isc. No.[SECTION]1111 of 2017 dt.20-0[SECTION]-2018 substantial justice for the administration of which alone court exist.
1[SECTION]. In State of Haryana and Ors. vs. Ch. Bhajan Lal and Ors [AIR 1992 SC 60[SECTION]], the Supreme Court judicially recognized certain grounds for exercising the power under [SECTION] of the [ACT]. One of the grounds enumerated therein is where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge the court would be justified in exercising the power under [SECTION] of the [ACT].
15. In the instant case, institution of the complaint itself prima facie appears to be an abuse of the process of law. The complainant, father-in-law of the daughter of petitioner no. 1 along with his son is facing a criminal case relating to dowry demand and subjecting a married woman to cruelty and in retaliation the instant complaint has been filed.
16. In my considered opinion, in order to do real and substantial justice for the administration of which alone the court exist, it is expedient that the proceeding against the petitioners which has maliciously been instituted with an ulterior motive for wreaking vengeance with a view to spite them due to private and personal grudge be quashed.
Patna High Court Cr.M isc. No.[SECTION]1111 of 2017 dt.20-0[SECTION]-2018
17. Accordingly, the complaint case vide [CASE NUMBER] including the order dated 09.02.2017 passed by the learned Chief Judicial Magistrate, Supaul in the said case is hereby quashed. The application stands allowed.
([ENTITY], J.) Kanchan/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 2[SECTION].0[SECTION].2018 Transmission 2[SECTION].0[SECTION].2018 Date