Case Facts:
Patna High Court Cr.Misc. No.7285 of 2011 (5) dt.13-07-2012 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.7285 of 2011 ====================================================== 1. Krishna Kant Tiwary @ Chhote Lal Tiwari , son of late Banshidhar Tiwary 2. Umashakar Mishra, son of late Dhanukdhari Mishra 3. Putup Mishra, son of Devendra Mishra 4. Anil Kumar Mishra, son of Sri Durendra Mishra 5. Devendar Mishra, son of Shri Niwas Mishra 6. Surendra Mishra, son of Sri Niwas Mishra 7. Shashi Shankar Mishra, son of late Dhanukdhari Mishra 8. Srinath Mishra, son of Jagarnath Mishra 9. Pappu Mishra son of Devendra Mishra 10. Sonu Mishra, son of Srinath Mishra, all are resident of Village-Jigina, P.S. Sikroll, District- Buxar. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Manu Singh, son of Satyaram Singh, resident of Village- Basaon Kala, P.S. Sikaraul, District- Buxar. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. B.J. Ojha, Advocate. For the Opposite Party/s : Mr. Arvind Kumar Mishra, advocate. Mr. Nand Kishore Prasad, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 5 13-07-2012 Heard learned counsel for the petitioners and learned counsel for the State. This application has been filed for quashing the order dated 19.4.2010 passed in Complaint Case No. 8© of 2010, Tr. No.225 of 2010 by the Judicial Magistrate, Ist Class, Buxar by which he has taken cognizance against the petitioners under [STATUTE] . From the complaint petition it appears that the land Patna High Court Cr.Misc. No.7285 of 2011 (5) dt.13-07-2012 in dispute was belonging to Uma Shanker Mishra and Jagannath Mishra and the same were donated to the Government of Bihar for construction of a school and in pursuance thereof the Government granted Rs.79,000/-. It has been further alleged in the complaint petition that while construction of boundary wall was in progress after measurement of land by Kameshwar Singh, Amin, the accused persons variously armed came on the spot at 2 P.M. and prevented from construction of boundary wall. It has also been stated that Devendra Mishra, Shashi Shanker Mishra and Sonu Mishra were holding the country made pistols. The associates of Uma Shanker Mishra have stopped the measurement and thereafter they have taken away the Government money of Rs.10,000/- from the pocket of the complainant. The complainant along with witnesses were examined and the court below has taken cognizance under [STATUTE] . Learned counsel for the petitioners submits that it is completely a frivolous case as the land was donated by Uma Shanker Mishra and Jagannath Mishra for purposes of construction of a school and as such there was no occasion for them to create any obstruction for the construction of Patna High Court Cr.Misc. No.7285 of 2011 (5) dt.13-07-2012 boundary wall. He has drawn the attention of this Court to Annexures 3 and 3/1 to show that after information received by the police, police force was posted at the spot. They remained there from morning to evening and during that period if there would have been any dispute between the parties, the police would have been intervened in the matter and if necessary would have registered a police case. He further submits that there is no explanation in the complaint petition for delay of three days in filing the complaint petition. He has further submitted that Uma Shankar Mishra is a retired teacher and all the accused persons belonging to same family. He has further submitted that the court can intervene in any matter when the court feels that the parties with a vindictive motive lodged the case which is an abuse of the process of the court. In contra, learned counsel for opposite party no.2 has controverted the argument advanced by learned counsel for the petitioners and submits that, as per the instruction, the police force was not on the spot and in absence of police force this incident has taken place. The court should not interfere in the matter of cognizance but in an exceptional circumstance, if the court feels, the case has been brought Patna High Court Cr.Misc. No.7285 of 2011 (5) dt.13-07-2012 with oblique motive and if there is an abuse of the process of the court, the court can interfere in the matter and in support of his contention he has relied on the judgment in the case of Minu Kumari and another Vs. State of Bihar and others, reported in (2006) 4 SCC 359. “20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based in sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision is a case where the entire facts are incomplete and hazy more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.” . Having considered the rival contention of the parties and fact and counter fact it is not very clear as to whether the police force was there or whether there was any intervention by the accused persons. At the stage of cognizance the test is only prima facie. If the case is made out from the statement made in the complaint petition then it can not be said that the Patna High Court Cr.Misc. No.7285 of 2011 (5) dt.13-07-2012 Magistrate has wrongl

Applicable IPC Section: 353

Statute Text:
Section 353 of the Indian Penal Code. Assault or use of criminal force to deter a public servant from discharge of his duty. Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.