IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.15062 of 2009 1. Akbari Begum w/o Md Abdullah 2. Md Jinul @ Jainul s/o late Md Yasin @ Yasin 3. Md Shamiullah @ Shaninullah s/o Md Jainul 4. Md Mintullah @ Mintullah 5. Md Sadullah @ Sadulah 6. Md Rahamtullah @ Rahamtulah 7. Md Abdullah All sons of late Md Ainul Haq 8. Shabnam Ara w/o Md Mintullah All resident of Parasbanna P.S. Nauhatta Dist. Saharsa Petitioners Versus The State Of Bihar & Anr Opposite party ---------------------------------- 5 20.9.2011 This petition has been filed under section 482 of the Cr. P.C. by the petitioners in Complaint Case no. 1036C/2007 passed by Sri Indrajeet Singh, Judicial Magistrate, Ist Class, Saharsa by which and whereunder he, having found prima facie case under sections 323, 448, 147/34 of the IPC against the petitioners, ordered to issue processes against them. 2. The brief fact which lies to file this petition is that opposite party no.2, namely, Sarbari Khatoon, filed Complaint Case no. 1036C/2007 against the petitioners and two others, namely, Md Ainul Haque and Saifullah on 29.6.2007 alleging therein that on 27.6.2007 at about 2 P.M. petitioners as well as two above stated persons being armed with lathi, farsa and other weapons entered her house and named accused Md Ainul Haque ordered others to throw all the belongings of the house and having received the aforesaid order, the petitioners and others threw one TV set worth Rs 4500/- from the house and also demolished other belongings of the house of the opposite party no.2. It is further case of opposite party no.2 that petitioner no.2 and one Saifullah took away a box 2 containing ornaments, cloths and cash Rs 2,000/- whereas petitioner no.3 took away a table fan worth Rs 1400/- and furthermore, petitioner nos. 5, 7 and 8 took away utensils and grains worth Rs 1500/- from the house of the opposite party no.2 whereas petitioner nos. 1 and 2 assaulted her and also snatched her gold ear ring worth Rs 5,000/-. She raised alarm which attracted witnesses but accused no.1 namely, Md Ainul Haque, threatened the witnesses not to intervene in the matter. The husband of the opposite party no.2 was not present at the house and when he came to his house, entire incident was narrated by opposite party no.2 and after that she along with others went to the concerned police station to lodge the case but her case was not registered and then she filed the above stated complaint case before the learned Chief Judicial Magistrate, Saharsa. 3. On 2.8.2007, a petition was filed on behalf of the opposite party no.2 before the learned Chief Judicial Magistrate, Saharsa, mentioning this fact that due to typing error name of accused no.4 Saifullah has been given in the complaint petition. The aforesaid fact is evident from annexure 2 to this petition. 4. The learned court below, having conducted an enquiry under section 202 Cr. P.C, passed the impugned order dated 24.9.2008 against which this petition has been filed. 5. At the time of hearing opposite party no.2 chose not to appear before this court though notice has already been served upon her and she has already made her appearance before this court through her learned counsel by filing vakalatnama. 6. Learned counsel appearing for the petitioners submits 3 that, as a matter of fact, prior to filing of Complaint Case no. 1036C/2007, accused on.1, namely, Md Ainul Haque, had filed complaint case bearing Complaint Case no. 1008C/2006 on 30.10.2006 against the husband of the opposite party no.2 and others and the aforesaid complaint was sent to Nauhatta police station where Nauhatta P.S. Case no. 46/2007 for the offences under sections 341, 323, 384, 467, 468, 471/34 of the IPC was registered against the husband of opposite party no.2 and others and, as a matter of fact, Complaint Case no. 1036C/2007 has been filed by opposite party no.2 in retaliation to the above stated Nauhatta P.S. Case no. 46/2007. 7. Learned counsel for the petitioners drew my attention towards annexure 3 and annexure 4 to the petition which are formal, FIR and final form of the aforesaid Nauhatta P.S. Case no. 46/2007 respectively. It is further contended by him that the husband of the opposite party no.2 is a notorious criminal and his name has been registered in gunda list which is evident from annexure 6 to the petition. It is further contended by him that there is land dispute between the petitioners and the opposite party no.2 and, as a matter of fact, petitioners had purchased certain piece of land from father of the opposite party no.2 and came in possession of the aforesaid land but the opposite party no.2 and her husband wanted to dispossess the petitioners from the aforesaid land and that is why they have adopted pressure tactic by filing Complaint Case no. 1036C/2007. He drew my attention towards solemn affirmation of complainant as well as annexure 5 series to the petition to show the enmity and land dispute of the parties. 4 8. It is further contended by him that, as a matter of fact, no such occurrence, as alleged in the Complaint Case no. 1036C/2007, has ever taken place and that is why the opposite party no.2 has filed the aforesaid Complaint Case no. 1036C/2007 against dead persons also. He submitted that opposite party no.2 lodged the aforesaid complaint case against two dead persons i.e. accused no.1 Md Ainul Haque and Saifullah and later on when she realized that she has filed the aforesaid case against dead persons, she filed a petition before the Chief Judicial Magistrate vide annexure 2 to delete name of accused no.4 Saifullah but she did not seek any relief for deleting name of accused no.1 Md Ainul Haque who was also a dead person. It is contended by him that the learned court below did not pay any heed towards the aforesaid fact and took cognizance of the offences against dead persons also. 9. It is further contended by him that, as a matter of fact, aforesaid Complaint Case no. 1036C/2007 has been brought by opposite party no.2 with mala fide intention and with absurd story and, therefore, the impugned order dated 24.9.2008 by which processes have been ordered to be issued against the petitioners as well as dead persons are liable to be quashed because continuance of proceeding of the aforesaid Complaint Case no. 1036C/2007 is nothing but only an abuse of the process of the law. 10. To fortify his contentions, he referred a decision reported in (2010) Volume 10 Supreme Court Cases 673. Relying upon the aforesaid decision, learned counsel for the petitioners submitted that, if any, absurdity is found in complaint petition, the court should exercise his 5 extra-ordinary power vested under section 482 of the Cr.P.C and the court must look into the allegations with openness and then to decide whether to pass any order in the interests of justice or not. 11. As I have already stated that none appeared on behalf of opposite party no.2 at the time of hearing nor any counter affidavit has been filed on her behalf to controvert the above stated contention of the learned counsel for the petitioners. 12. Annexure 1 to his petition reveals that initially, opposite party no.2 filed Complaint Case no. 1036C/2007 against ten persons including Md Ainul Haque and Saifullah and admittedly, before recording solemn affirmation of opposite party no.2, a petition was filed on her behalf before the Chief Judicial Magistrate, Saharsa on 2.8.2007 mentioning this fact that due to error of typist name of petitioner no.4 namely, Saifullah has wrongly been typed. The contents of the complaint petition show that there is specific allegation against aforesaid Saifullah that he along with petitioner no.2 took away a box containing ornament, cloths and cash from the house of opposite party no.2. It is the specific assertion of the petitioners that Saifullah had already died prior to filing of Complaint Case no. 1036C/2007. So, the aforesaid fact suggests that opposite party no.2 (complainant) was not aware about death of the above stated Saifullah at the time of filing of the aforesaid complaint petition and that is the reason she has given his name with specific allegation in complaint petition. No doubt, later on she filed a petition in the court of the Chief Judicial Magistrate disclosing the so-called error of typist but in the said petition she has not disclosed this fact that accused no.4 Saifullah had 6 already died prior to filing of the above stated complaint case. So, the aforesaid fact suggests mala fide intention of opposite party no.2. Although it is stated on behalf of the petitioners that accused no.1 had also died prior to filing of the Complaint Case no. 1036C/2007 but the date of death of the aforesaid Md Ainul Haque has not been given by the petitioners in their petition. It would appear from perusal of the impugned order of the learned court below that the learned court below has taken cognizance against all the accused persons named in the complaint petition and it is not clear from the impugned order of the learned court below as to whether he has passed any order on the petition of opposite party no.2 for deleting name of Safiullah or not. 13. Admittedly, there is long standing dispute between the parties and furthermore, prior to filing of the Complaint Case no. 1036C/2007 co-accused Md Ainul Haque had lodged Nauhatta P.S. Case no.46/2007 against the husband of opposite party no.2 and others. Moreover, the story, as propounded by opposite party no.2, appeared to be absurd and it appears to me that the present complaint case bearing Complaint Case no. 1036C/2007 has been brought by opposite party no.2 with mala fide intention in retaliation to the above stated Nauhatta P.S. Case no. 46/2007. 14. In the case of State of Haryana & others vs Bhajan Lal & others reported in 1992 (suppl. 1) SCC 335, it has been held that where criminal proceeding is manifestly attended with mala fide and /or whether 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 7 personal grudge, the court should exercise its power vested under section 482 of the Cr.P.C 15. In the present case, there is an apparent absurdity to this effect that the aforesaid complaint case has been filed against a dead person and furthermore, there is whole lack of bona fide of opposite party no.2 and, therefore, in my view, this court should not hesitate to exercise its power under section 482 of the Cr.P.C. 16. In view of the above stated discussions, I have no option except to exercise the power vested under section 482 of the Cr.P.C and accordingly, this petition is allowed and the impugned order dated 24.9.2008 passed in Complaint Case no. 1036C/2007 pending in the court of Sri Indrajeet Singh, Judicial Magistrate, Ist Class at Saharsa is, hereby, quashed. 17. In the aforesaid manner, this criminal miscellaneous case stands disposed off. 18. Let this order be communicated to the learned court below for needful. Shahid ( Hemant Kumar Srivastava,J)