Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.10182 of 2010 ====================================================== 1. Md.Sajjaque. 2. Md. Rabban. 3. Md. Kismat. 4. Md. Usman. 5. Md. Rustam. All sons of Late Md. Kamal, resident of village-Mansigharari, P.S.- Mansi, District-Khagaria. .... .... Petitioners. Versus 1. The State of Bihar. 2. Md Sazur, son of Md. Mazlum, resident of village-Chak Hussani, P.S.- Mansi, District-Khagaria. .... .... Opposite Parties. ====================================================== Appearance: For the Petitioners : Mr. Ashok Kumar Singh No.2, Adv. For the Opposite Parties : Mr. Dr. Mayanand Jha, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER 4. 15-05-2012 Petitioners have prayed for quashing of order of cognizance dated 28.01.2010 passed by learned Chief Judicial Magistrate, Khagaria relating to Mansi P.S. Case No.38 of 2009 as well as directing the petitioners to face trial for an offence punishable under [STATUTE] . Md. Sanzur filed Complaint Case No.310 of 2009 bearing date of occurrence 18/19-11-2008 disclosing therein that co-accused Sajjaque took money from his brother-in-law Israil through his sister Kalo Khatoon at different occasion totaling Rs.47,000/- after executing document, for which there was insistence to refund. On 18.11.2008, at about 5-6 P.M., while Kalo Khatoon and her daughter Ruksana was at their -2- house, Usman Khan came and on the pretext of some urgent work took Kalo Khatoon with him to his house. During midst of way Prithavi Yadav, Buldan Singh, Sheo Singh, met whom she disclosed that on call she was going to Sajjad. Unfortunately, Kalo did not return at night. In following morning, there was rumour over presence of dead body of a women lying by the side of railway track over which so many persons including Ruksana gone there and identified the dead body to be of Kalo. He also rushed after coming to know about the same. He had found Pyal, bangles, pauhachi, ear ring appertaining to 7-8 thousand missing. Complainant had rushed to Police Station on account of which police came whom complainant as well as Ruksana had disclosed that Usman had taken the Kalo Khatoon and only to digest the amount, murdered Kalo Khatoon. Accused persons influenced the police and on account thereof, without holding postmortem examination succeeded in burying the dead body. Subsequently thereof, he demanded the amount from the accused persons but the accused persons declined on the pretext that they had already paid the amount to the deceased. Later on a case was instituted before the Gram Katchahari. But the same could not favourable ended. The aforesaid complaint was sent to the P.S. concerned for registration and investigation of a case under Section 156(3) of the Cr.P.C. whereupon Mansi P.S. Case No.38 -3- of 2009 was registered and investigation commenced concluded by way of filing of police report as false. The learned Chief Judicial Magistrate differing there from took cognizance vide order dated 28.01.2010 which happens to be under challenge. It has been submitted on behalf of the petitioners that whatever allegation has been levelled by the complainant / informant is palpably false and the same has been levelled with a malafide intention only to squeeze money. The complaint petition was filed after five months of alleged date of occurrence without having any sort of explanation. It has further been submitted that the real fact is that deceased met with an accidental death while she had gone to meet natur’s call. The husband of deceased Md. Israil who was present after coming to know about accidental death of deceased, rushed to the spot and executed an undertaking before the police disclosing therein that his wife has met with accidental death. He has got no suspicion against any body. He wants to perform last right. He does not want to get the postmortem conducted and so, dead body was received by the husband of deceased Md. Israil who performed necessary rituals as per muslim law. Because of the fact that some sort of dispute arose over payment of money and being frustrated therein, got this complaint filed through complainant otherwise having presence of husband of deceased roust presence of complainant. The falsity of the case is further evident from the fact that husband of deceased had not come -4- forwarded to put any sort of allegation against anybody what to talk about petitioners. In likewise manner also argued that there was no reliable material before the learned Chief Judicial Magistrate coming out from the case diary which could justify the action of the Chief Judicial Magistrate whereupon cognizance has been taken followed with summoning of petitioners by the order impugned. Hence the order impugned is fit to be set aside. At the other hand the learned Additional Public Prosecutor opposed the prayer and submitted that the learned Chief Judicial Magistrate was well within his domain to take cognizance differing from the conclusions arrived at by the police after concluding investigation. In spite of having personal service Opposite Party No.2 failed to appear. There happens to be basic principle laid down by Hon’ble Apex Court through catena of decisions that after submission of police report the learned Magistrate has got three options. (a) to accept the same, (b) to differ there from and (c) to direct further investigation. Both three options are independent to each other without having any short of overlapping eventuality. Now coming to the order impugned, it is evident that the police had submitted final report showing the case untrue. The order impugned suggests that the learned Magistrate differed therefrom and took cognizance for an -5- offence but during said process the learned Magistrate had incorporated: ÞmijksDr rdksZ ds vkyksd esa ifjokn i= la[;k 310lh@09 ,oa fojks/k&i= fnukad

Applicable IPC Section: 420

Statute Text:
Section 420 of the Indian Penal Code. Cheating and there by dishonestly inducing delivery of property, or the making, alteration or destruction of a valuable security. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.