IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34636 of 2008 MISHRI LAL BHANDARI, SON OF LATE CHARITRA BHANDARI, RESIDENT OF VILLAGE BHEROKHARA, P.S. TAJPUR, DISTRICT SAMASTIPUR (ACCUSED) --- PETITIONER Versus 1. THE STATE OF BIHAR 2. SHIV DULARI DEVI, WIDOW OF LATE LAXMI NARAYAN SAH, RESIDENT OF VILLAGE BHEROKHARA, P.S. TAJPUR, DISTRICT SAMASTIPUR (COMPLAINANT) --- OPPOSITE PARTIES For the Petitioner :- Mr. Ashok Kumar Choudhary, Advocate For the State :- Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No. 2 :- Ms. Anuradha Singh, Advocate ----------- 3 19.3.2010 Heard the parties. The petitioner has challenged the order dated 24.6.2008, passed by the Judicial Magistrate, 1st Class (Railway Samastipur) in Cr. 4 of 2008 (arising out of Samastipur Railway P.S. Case No. 70 of 2007, giving rise to Gr. No. 106 of 2007) by which cognizance has been taken for offences under Section 376 of the Indian Penal Code and summoned the petitioner to face trial. Justice Desai has said in the case of Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr. (A.I.R. 1982 Supreme Court 1238 ) that “A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law.” Only in this case the opposite party is true. It is the tenant who has enmeshed the landlord in a criminal case. The facts are that the petitioner who is about 75 years of age and the complainant who is about 55 years of age and 2 her husband were on very good terms. The petitioner thereafter let out his house to the complainant where she lived for a long time. Later the petitioner required his house for whatever purposes and asked the opposite party to vacate the house which has led to the occurrence which followed. An eviction suit was filed by the petitioner which was decreed on 30.9.2004. Against the decree the opposite party no. 2 filed Eviction Appeal No. 30 of 2004 which was dismissed. Thereafter a second appeal was preferred in this Court which is Second Appeal No. 229 of 2006 along with an application for stay. Eventually, the tenant lost in the second appeal. Having lost on all counts, the opposite party no. 2 filed a First Information Report alleging that the opposite party no. 2 was waiting at Samastipur railway platform. The petitioner is said to have come at the platform. Both of them went to a lonely place and it is alleged that he raped her. The said occurrence took place on 27.5.2007 and the First Information Report was instituted on 6.7.2007. On investigation police submitted a final report 125 of 2007 contained in annexure-3 from which it is apparent that the allegations were found to be false and the Investigating Officer found that the case has been instituted because of the eviction suit filed by the petitioner. The complainant filed a protest petition which has been treated as a complaint petition and the court has proceeded on the basis of the complaint petitioner and the S.A. of the opposite party no. 2 to take cognizance under Section 376 of 3 the Indian Penal Code. It is apparent from the facts stated aforesaid that the F.I.R. and subsequent protest-cum-protest petition has been filed because of the fact that the opposite party no. 2 was aggrieved by the petitioner as he had filed an eviction suit by which she was forced to leave the premises in which she was a tenant. The dispute began in 2004 and eventually when she lost on all fronts in 2006 the opposite party no. 2 took help of the Court to file a criminal case alleging the worst type of offence so that she could take revenge to fulfill the motive of harassing the petitioner. It may be noted that although the occurrence took place on 27.5.2007, the report with respect to the occurrence was filed on 6.7.2007, which indicates that it was an after thought, planned and motivated by malice in order to take revenge. This Court cannot encourage litigations of this type and give protection to persons, who himself misutilizes and abuses the process of law and such malicious prosecution should obviously be quashed. I may point out that my view is supported by the judgment in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in 1992 Supp (1) SCC 335 wherein the present case would come under exception 7, where the Court has held that “Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a 4 view to spite him due to private and personal grudge” such proceeding may be quashed. I find that this is one case which fits the description of a malicious prosecution, where the law has been used as tool for taking revenge. Thus The order taking cognizance dated 24.6.2008 passed in Cr. 4 of 2008 (arising out of Samastipur Railway P.S. Case No. 70 of 2007, giving rise to Gr. No. 106 of 2007) passed by the Judicial Magistrate, 1st Class (Railway Samastipur) is quashed. This application is allowed. AFR / Sanjay (Sheema Ali Khan, J.)