Criminal Miscellaneus No.4848 OF 1999 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------ 1.RAJENDRA PRASAD PATWA @ RAJENDRA PRASAD 2.Sachita Nand Patwa @ Sachita Nand Prasad Both sons of Lalan Prasad Patwa resident of Village-Khajini Bazar, Tole-Khutibhar, P.S.-Khajani, Dist.-Gorakhpur. ….. ….Petitioners Versus 1. STATE OF BIHAR 2. Madan Prasad Patwa son of late Tulsi Patwa, resident of Mohalla-Kila Chik Toli, Siwan, P.S.-Siwan(Town), Dist.-Siwan. ….. …..Opposite Parties. ------ For the petitioners: Mr.Prasoon Sinha For opposite party no.2: None For the State: Mr.Damodar Prasad Tiwary ------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------ Rakesh Kumar,J. Two petitioners, who are brothers of wife of opposite party no.2, while invoking inherent jurisdiction of this under section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 10.4.1997 passed by learned Chief Judicial Magistrate, Siwan in Complaint Case No.1440 of 1996. By the said order the Chief Judicial Magistrate has taken cognizance of the offence under section 379 of the Indian Penal Code. In the complaint case, it was alleged by the complainant that that these two petitioners arrived at the residence of the complainant at Siwan, for discussing the case of maintenance which was filed by the sister of these petitioners against her husband i.e. the complainant. It was also alleged in the complaint that the maintenance case was pending in the court of 2 Gorakhpur(U.P.). The complainant had alleged in the complaint petition that the petitioners stayed in the night of 8.12.1996. They stayed in the guest room of the complainant. However, early in the morning at about 4.30 A.M. both the accused persons left the house of the complainant and they took away one table fan, one wall watch and one woolen wrapper. According to the complainant, the stolen articles were for an amount of Rs.1,500/-. On these allegations, after examining the complainant on solemn affirmation and one witness in support of the complainant’s case, the learned Chief Judicial Magistrate by its order dated 10.4.1997 took cognizance of the offence under section 379 of the Indian Penal Code. 2. By order dated 9.8.1999, while admitting the present petition for hearing and directing for issuance of notice to opposite party no.2, this court had directed that during the pendency of the application, further proceedings as regards the petitioners in Complaint Case No.1440 of 1996 in the court below shall remain stayed. Despite valid service of notice on opposite party no.2, none has come forward to support the case of opposite party no.2. 3. Sri Prasoon Sinha, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that bare perusal of the contents of the complaint petition makes it clear that allegation in the complaint petition is false. He further submits that the present complaint petition has been filed falsely and maliciously by the complainant 3 only with a view to harass the petitioners, who are brothers of his wife, who had filed a maintenance case and in which by judgment and order dated 15.6.1995 the complainant was directed to make payment of maintenance of Rs.400/- per month to his wife and Rs.100/- to his minor daughter. Learned counsel for the petitioners, while referring to annexure-4 to the petition, which is a copy of the judgment and order dated 15.6.1995 passed in Case No.326 of 1988, submits that maintenance case was already disposed of prior to the filing of the present complaint petition and the complainant had even suppressed this very fact in his complaint petition which was obviously filed on 9.12.1996. Learned counsel further referred to annexures 2 and 3 to the petition. He submits that annexure-2 is the complaint petition which was filed in the year 1987 by the complainant against these two petitioners and his family members for the offences under sections 498, 420, 403, 406/34 of the Indian Penal Code. He submits that the said prosecution was set aside by this court vide order dated 10.9.1991 passed in Cr.Misc. No.613 of 1988, which has been annexed as annexe-3 to the present petition. Accordingly, in view of the facts and circumstance mentioned hereinabove, the learned counsel for the petitioners has prayed for quashing of the order of cognizance and subsequent proceedings in Complaint Case No.1440 of 1996. 4. I have also examined the materials available on the record and the complaint petition, which is annexure-1 to the present petition. The perusal of the complaint petition is sufficient 4 to convince the court that allegation in the complaint petition is completely false. It is difficult to understand that the brothers of the wife of the complainant (petitioners), who were residing at Gorakhpur will come to Siwan only for the purpose of committing theft of table fan, wall watch and woolen wrapper particularly in view of the fact that wife of the complainant was in litigating term with the complainant and against the complainant a case was filed by his wife. The judgment was passed against him for maintenance. Besides this, the fact that earlier complaint petition filed by the complainant was quashed by this court is also one of the grounds for interfering in the present matter. 5. In the facts and circumstances, I am of the view that the complaint was filed maliciously against the petitioners and, therefore, the order of cognizance dated 10.4.1997 passed in Complaint Case No.1440 of 1996 is fit to be set aside and I set aside the order of cognizance and all subsequent proceedings in the complaint case so far as it relates to both the petitioners. Accordingly, the petition stands allowed. Patna High Court The 8th April, 2010 NAFR/Md.S. ( Rakesh Kumar, J.)