Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.39790 of 2011 ====================================================== Binod Kumar Nayak , son of Late Sukhdeo Prasad Nayak, resident of Village- Naya Tola, Bara Bazar, P.S. Katihar, District- Katihar .... .... Petitioner/s Versus 1. The State Of Bihar 2. Dhirendra Prasad Son of Sri Sotilal , resident of Mohalla- Simra, Bagan Hridayganj, P.S. and District-Katihar .... .... Opposite Party/s ====================================================== With Criminal Miscellaneous No.38263 of 2011 ====================================================== 1. Dr. Sheema Mishra @ Sheema Mishra , wife of Dr.N.K.Jha 2. N.K.Jha @ Nagesh Kumar Jha, son of Late Rajeshwar Jha Both residents of Mohalla- Raja Hata Katihar, P.S. & District-Katihar .... .... Petitioner/s Versus 1. The State Of Bihar 2. Dhirendra Prasad Son of Sri Sotilal , resident of Mohalla- Simra, Bagan Hridayganj, P.S. and District-Katihar .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 11 09-08-2012 Since both the cases arise out of the same complaint i.e. Complaint Case No. C.A. 1552 of 2011, they were heard together and are being disposed of by this common order. In the first case i.e. Cr.Misc.No. 39790 of 2011, petitioner Binod Kumar Nayak is the compounder of petitioners in Cr. Misc.No.38263 of 2011. In the second case i.e. Cr. Misc.No.38263 of 2011 petitioner no.1/ Dr. Sheema Mishra is the gynecologist and petitioner no.2/ N.K.Jha is also a doctor and husband of petitioner no.1, who were running a nursing home. Patna High Court Cr.Misc. No.39790 of 2011 (11) dt.09-08-2012 2 / 5 2 Petitioners in both the cases have approached this Court , while invoking its inherent jurisdiction under Section 482 of the Code of Criminal procedure with a prayer to quash an order dated 09.08.2011 passed in Complaint Case No.CA 1552 of 2011 by the learned Judicial Magistrate, 1st Class, Katihar. By the said order, the learned Magistrate has taken cognizance of offence under [STATUTE] . Short fact of the case is that the complainant, who is uncle of one Priyanka Gupta, had filed the aforesaid complaint on 27.06.2011 in the court of learned Chief Judicial Magistrate disclosing therein that his niece Priyanka Gupta had gone to the petitioners’ clinic. His niece was advised for caesarian operation and also Tubectomy and charged for the same. It was alleged that Priyanka Gupta delivered child and while lying on operation table, Dr. Mishra demanded more operation charge and on refusal they were abused. It was alleged that his niece was released without tubectomy operation and she was cheated by the petitioners. Subsequently, after noticing the fact, an objection was raised before the doctor concerned and thereafter Priyanka Gupta and others were assaulted and on the aforesaid fact, complaint petition was filed on 27.06.2011. After filing of the complaint petition, witnesses were examined and after conducting enquiry, the Patna High Court Cr.Misc. No.39790 of 2011 (11) dt.09-08-2012 3 / 5 3 learned Magistrate has passed order of cognizance under [STATUTE] . Sri N.K. Agrawal, learned Senior Counsel , who was assisted by Sri Bhola Prasad, learned counsel for the petitioners submits that the alleged victim girl i.e. Priyanka Gupta had also filed a case before the Consumer Forum for realization of Rs.1,95,000/- as compensation. It was submitted that only with a view to put pressure on the petitioners a colour of criminal offence has been given in the complaint petition. It is further asserted that since after Priyanka Gupta was treated in a Nursing Home of the petitioner, Priyanka Gupta and other associates were trying to extort money from the petitioners and on that allegation from the petitioners side also a complaint petition was filed vide Complaint Case No. 956 of 2011 against Priyanka Gupta, in which learned Magistrate has also passed order of cognizance. In sum and substance, it was submitted that the present complaint was filed only with a view to put pressure on the petitioners, so that they may succumb in the case before the Consumer Court. Sri Vimal Kumar, learned counsel appearing on behalf of the complainant/Opp.Party no.2 submits that the niece of the complainant was operated by petitioner no.1 in the second Patna High Court Cr.Misc. No.39790 of 2011 (11) dt.09-08-2012 4 / 5 4 case (i.e. Cr.Misc.No.38263 of 2011) and she had also charged for operation of Tubectomy , but no such operation was conducted and ,as such, it was a clear-cut case of cheating. Besides committing offence of cheating when demand was not fulfilled, accused persons assaulted and committed offence, for which cognizance order has been passed. According to learned counsel for Opp.Party no.2, there is no infirmity in the order of cognizance and the petition is fit to be rejected. However, at the time of argument, it was accepted by learned counsel for Opp.Party no.2 that even against Priyanka Gupta ( niece of the complainant of the present case), the petitioners had filed a complaint case that too after noticing the fact that before the Consumer Court a case was filed by Priyanka Gupta . This fact has been mentioned in paragraph-2 of Annexure- 2 to the present petition i.e. Complaint Case No.956 of 2011. Besides hearing the parties, I have also perused the materials available on record. After going through the materials available on record, the Court is of the opinion that litigations in between the parties had initiated only with a view to create pressure or defence in the complaint case, which was filed before the consumer court. Moreover, the niece of the complainant was medically examined by petitioner no.1 of the second case as Patna High Court Cr.Misc. No.39790 of 2011 (11) dt.09-08-2012 5 / 5 5 Medical Practioner . Moreover, neither the victim la

Applicable IPC Section: 341

Statute Text:
Section 341 of the Indian Penal Code. Wrongfully restraining any person. Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.