IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6675 of 2010 Sri Krishna Sinha, son of Late P.N.L. Sinha, resident of M.I.G. 75, Rapti Nagar Phase 1, Gorakhpur, retired Principal Judge, Family Court, Gopalganj …………………. Petitioner Versus 1. State of Bihar. 2. Sudhir Kumar Shrivastava son of Awadh Kishore Shrivastava, resident of Village- Sakhe Khas, P.S. Uchakagaon, District Gopalganj ………………. Respondents ----------- For the Petitioner : Mahesh Narayan Parbat Ved Prakash Shrivastava Mritunjay Kumar Advocates For the Opp. Party No. 2 : Shantanu Kumar Advocate For the State : Dashrath Mehta, A.P.P. 03. 06.07.2010 This petition seeks quashing of the order dated 8.12.2009 passed by Sri M.K. Shrivastava, Judicial Magistrate, Gopalganj in Complaint Case No. 2724 of 2008, by which the petitioner who had retired as Principal Judge, Family Court, Gopalganj, has been summoned for committing offences under Sections 342 and 506 of the Indian Penal Code. The allegation was that a petition had been -2- filed by the complainant under Section 9 of the Hindu Marriage Act for a decree of restitution of his conjugal rights which was registered as Matrimonial Case No.321 of 2006 and was pending before the petitioner while he was posted as Principal Judge, Family Court, Gopalganj. The further allegation is that some relationship had developed between the Judge and complainant’s wife and that continued outside the Court also and after his retirement the petitioner took the lady into his family- fold and started keeping her at some secret place. The complainant alleged that he came to know that his wife was being kept by the petitioner at his residence in Gopalganj and accordingly, he established a contact by making a call on the cellular phone of the petitioner, but he refused to give any information. It was further alleged that the petitioner held out threat to the brother of the complainant on many occasions of getting the complainant and his brother killed and, lastly, the complainant came to know that the petitioner had confined his wife into the house of one Birendra Prasad at Gopalganj. Accordingly, he came to -3- the above destination on 21.11.2008 at 8 a.m. and found his wife with the petitioner and seeing the complainant having come there, it is alleged, the petitioner put the lady inside a room and put the lock at its door and in spite of being requested to bring out the lady, the petitioner refused to do it and abused him, besides threatened him of being put into the police lock-up by reporting a matter to the police. It appears that on receiving the complaint petition, the same was made over by the Chief Judicial Magistrate, Gopalganj to the learned Magistrate for holding an inquiry under Section 202 Cr. P.C. and that resulted in the order impugned dated 8.12.2009. Sri Mahesh Narayan Parbat, learned counsel appearing for the petitioner has submitted that while being posted at Gopalganj as the Principal Judge of the Family Court, the petitioner had an opportunity of hearing the petition filed by the wife against the complainant seeking dissolution of her marriage to the complainant which case was registered as a Matrimonial Case No. 10 of 2008, besides the case which is referred -4- to by the complainant in his complaint petition which as per his statement, was filed vide Matrimonial case No. 321 of 2008 seeking the decree of restitution of conjugal rights which was also heard by him. It appears that in spite of notices being issued, the complainant did not appear in Matrimonial Case No. 10 of 2008 and that was decreed in favour of the lady, while Matrimonial Case bearing No. 321 of 2006, which was filed by the complainant, was dismissed with the direction to the complainant to pay permanent alimony of Rs.1,75,000/- to the wife, i.e., Smt. Madhubala Sinha @ Renu. The order in Matrimonial Case No. 10 of 2008 was passed ex parte but the Matrimonial Case No. 321 of 2006 was dismissed on contest, which order was assailed before this Court in First Appeal No. 50 of 2008 and this Court refused to interfere with the order and dismissed the appeal filed by the complainant. As regards the ex parte order passed in Matrimonial Case No. 10 of 2008 dissolving the marriage of the wife to the complainant, that was sought to be set aside under Order IX Rule 13 and that petition was dismissed by order dated 17.6.2008 -5- passed in Misc. Case No. 10 of 2008, the copy of the orders passed by this Court in First Appeal No. 50 of 2008 and Misc. Case No. 10 of 2008 have been annexed to the present petition as Annexures 3 and 4. It was further contended that the date on which the allegation of coming to the house of the petitioner at Gopalganj is made out, the same gets controverted by the fact that the petitioner does not reside in Gopalganj rather being native of Gorakhpur he was present there with his family and on that very date, i.e., the date of occurrence dated 21.11.2008, the petitioner was busy with some domestic work of getting his retiral benefits invested in some plan of the State Bank of India in one of its branches at Gorakhpur, copies of the certificates of investments have been annexed as Annexure-6 (series) which appears at pages 38 and 39 of the present petition. It was further contended that the petitioner was discharging his judicial functions as the Principal Judge of the Family Court and he was called upon by law to apply his mind to the facts of a particular case and -6- pass judgment and order as was required under the facts and circumstances of that particular case and it is simply unfortunate that he could be made the victim of passing such order by being called upon by the Court of a Magistrate to face trial on completely malicious and vexatious allegations. It was further contended that the whole purposes of launching of prosecution is to spit at the petitioner and also to malign him so that he could feel punished for passing such judicial orders while sitting as the judge of a Court. Learned counsel appearing for the opposite party-complainant has simply read out the contents of the complaint petition to meet the allegations and has contended that there are true reasons to be appreciated and the witnesses have supported the allegations and as such the order of summoning and prosecution must be allowed to go to the full fledged trial. The court refers to a decision of the Supreme Court reported in Pepsi Foods Vs. Spl. Judl. Magistrate reported in 1998 SCC Cr. 1400. It was highlighted by the Supreme Court as to what is the fall -7- out of a criminal proceeding which is initiated by a complainant and how could it affect the liberties of a person. Besides, I have also held in a decision, like, 2007 (2) PLJR 723 after making reference to Rule 31 of the Criminal Court Rules that the Magistrates are required to hold an intelligent inquiry into the subject matter of the complaint carried out so far to enable the Magistrate to exercise his jurisdiction to find out as to whether there is or is not sufficient ground for proceeding. The above Rule further directs that the examination of the complainant and the witnesses present, if any, is not to be a mere form. I have dwelt upon the above Rule as pointed out in the above noted decision as to what is the meaning of holding such intelligent inquiry. In that decision, I have pointed out to the Magistrates of the State that the above Rule requires the Magistrate to involve his intelligence and wisdom to reach out to the truth and then to find out whether there could be sufficient ground for proceeding or not. It was further directed by me that the Magistrates have never to take serious business of holding an enquiry with lethargy -8- which is to be carried out by him under Section 202 Cr.P.C. rather they have to keep it in their minds that summoning a person affects his liberties and rights deeply and as such it is a very serious business. Unfortunately, the directions of the Supreme Court issued in Pepsi Food case or my observation, which I made in the above noted case, appears not to have gone well through the Magistracy of the State. There could not be a better example than the present one as to how mechanically and indifferently they proceed to hold the inquiry under Section 202 Cr.P.C. It is pointed out to this Court by the petitioner that he was a Judge who retired as Principal Judge of the Family Court, Gopalganj. It was pointed out to the Court below also by the complainant that the accused who is sought to be summoned on the complaint was a retired Principal Judge, Family Court, Gopalganj, but unfortunately, again the Court lost sight of the fact and even appear not looking to the complaint petition to apply its mind against which he had to proceed to inquire into the allegations. There is competent law formulated -9- by the Parliament of the Union known as Judicial Officer Service Protection Act, 1918. It was enacted as long back as 1918, that the acts of the judicial officers which were performed by them during discharge of their judicial functions in any judicial proceedings could not be brought into question. The orders and decrees which are passed by a Judge are always passed due to a jurisdiction in those behalf are vested in him as per the provision of the relevant law and the same has nothing to do as to who was the Judge, who was passing the order/decree while sitting as such in performance of his statutory jurisdictions or in discharge of his official judicial duties, who might have dismissed the petition or passed an order which was directing a party like the complainant to do or not to do a particular. As soon as, the petitioner was directing the dissolution of the marriage of the lady to the complainant, it was implied directions to the complainant that he could never act against the lady and can never do any act to dictate his terms to her. As such, this could be the real reason that he was spitting as a retired Judge for having discharged -10- his official duties, he was taking his vengeance upon him. He was spiting at him and at a public place like the seat of a Court of justice for brining out a complaint petition which was bearing all filthy allegations against a dignified citizen of India, who had retired from judicial service. This Court feels that the Magistrate who passed the impugned order in the above noted complaint petition should have read the reasons contained in the petition itself for bringing such complaint petition which was not only mala fide but, on the very face of it appeared frivolous. Unfortunately, the Magistrate appears to have failed in discharging his judicial duties. Considering the facts and circumstances of the case which I have noticed above, I find that the whole purpose of the prosecution which was initiated by filing complaint petition No. 2724 of 2008 was only to heap malicious allegations and vengeance upon the petitioner which the complainant was entertaining after getting adverse orders against him from the Judge who had now been retired. Besides, it appears that filing of the complaint petition was not with a view to getting -11- justice but to malign the Judge in the estimates of the public and also judicial minds. Keeping the above in view, I quash the entire proceedings, which had been initiated by filing the complaint petition, above noted, and the order which was passed by Sri M.K. Srivastava, Judicial Magistrate, Gopalganj on 8.12.2009. I have other things in my mind, as regards the conduct of Sri M.K. Srivastava, Judicial Magistrate, Gopalganj when I was thinking to place the whole facts before the Court on its administrative side. But, I suppose that Sri Srivastava could be a new entrant to the service. He is yet to be properly trained and duly tempered in judicial discretion and performance of duties. As such, I suggest to him that on this type of occasion, he has to be careful and intelligent while passing such order. Petition allowed. S.S. (Dharnidhar Jha, J.)