Criminal Miscellaneous No.31576 OF 1999 In the matter of an application under Sections 482 of the Code of Criminal Procedure ------------- 1. SUBHASH CHANDRA, Son of Shri Ramadhin Prasad, resident of Village-Bathahar, Police Station- Tharthari, District-Nalanda 2. Ramchandra Prasad, Son of Late Badri Mahto, resident of Village-Shankarpur Jhawan, Police Station-Noorsarai, District-Nalanda 3. Hari Narain Prasad, Son of Late Tetar Prasad Singh, resident of Village-Anantpur, Police Station-Chandi, District-Nalanda --------- Petitioners Versus 1. THE STATE OF BIHAR 2. Ramdhani Prasad, Son of Late Lakhraj Singh, resident of Village-Bathahar, Police Station-Tharthari, District- Nalanda. -------------- Opp. Parties. ---------- For the petitioners: S/Sri Anjani Kumar& Vishwa Ranjan Chaudhary, Advocates. For the State : Mr. Raj Ballabh Singh, A.P.P. For Opp.Party no.2: None. --------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J Three petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 16.7. 1999 passed by Sri A.K.Mishra, learned Judicial Magistrate, 1st Class, Hilsa in Complaint Case No.34 (C) 1999. The petitioners have also prayed for quashing of the order dated 15.9.1999 passed in Cr.Revision No.225 of 1999 by the learned Sessions Judge, Nalanda, Biharsharif. By the order dated 16.7.1999 , the learned Magistrate had taken 2 cognizance of the offences under Sections 420, 387, 468,378, 341,504 and 34 of the Indian Penal Code and directed for issuance of process for securing attendance of accused persons. Challenging the order of cognizance, the petitioners preferred revision vide Cr.Revision No.225 of 1999, which too stood rejected by the order dated 15.9.1999 by the learned Sessions Judge, Nalanda. Aggrieved with both the orders i.e. order of cognizance as well as rejection of revision petition, the petitioners have invoked inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. 2. Short fact of the case is that initially Opp.Party no.2, who is father of petitioner no.1 filed a complaint case vide Complaint Case No.125 C/98 against the petitioners, his father-in-law and one Ram Chandra Prasad alleging therein that after partition , the Oil-Mill along with Flour Mill, Speller etc. came into the share of the complainant. However, in absence of the complainant, as alleged by the complainant, petitioner no.1 with other accused persons forcibly took away the Speller, which was for an amount of Rs.25, 000/-. It was further alleged that subsequently the petitioners forcibly confined the complainant and his younger son in a room and by giving threat on the point of pistol they got signature of the complainant over blank papers and thereafter the complainant and his younger son were released from confinement . The said complaint petition was referred to 3 the police for its registration and investigation under Section 156(3) of the Code of Criminal Procedure. Accordingly, an F.I.R. vide Chandi ( Tharthari ) P.S. Case No. 113 of 1998 was registered on 24.4.1998 for offences under Sections 379, 347 and 504/34 of the Indian Penal Code. While the investigation was in progress, the complainant filed a protest petition in the court of the learned Chief Judicial Magistrate, Hilsa, Nalanda on 19.5.1998, disclosing therein his apprehension from the police that he may not get justice since the police had connived with the accused persons. After filing of the protest petition, the police submitted final form on 31.5.1998. The protest petition was treated as complaint petition vide Complaint Case No.34C of 1999. In the complaint case, the complainant was examined on S.A. and in his support he got examined his younger son as only enquiry witness. The learned Magistrate on the basis of materials available on the record before him by order dated 16.7.1998 took cognizance of offences as mentioned above. 3. Aggrieved with the order of cognizance, the petitioners preferred a revision petition vide Cr.Revision No.225 of 1999. The revision petition was subsequently dismissed on 15.9.1999 by the learned Sessions Judge, Nalanda. Aggrieved with both the orders i.e. order of cognizance and rejection of revision petition, the petitioners approached this Court by filing the present petition, which was 4 admitted on 6.3.2000. While admitting the case, this Court had directed that pending disposal , further proceeding in Complaint Case No.34( C) /99 pending in the court of Judicial Magistrate, 1st Class, Hilsa, shall remain stayed. The stay order is still continuing. 4. Sri Anjani Kumar, learned counsel appearing on behalf of the petitioners has argued that the order of cognizance and subsequent proceeding in the present case is liable to be set aside on two grounds, i.e. firstly on the ground of malicious prosecution and secondly on the ground that the nature of allegation was purely civil and with a view to circumvent the civil proceeding the complainant had adopted the criminal course in the matter. 5. Learned counsel for the petitioners submits that the allegation, which was apparently false, was thoroughly investigated by the police and during the investigation, the police found that the properties of the petitioners and the complainant were already partitioned and the Mill in question had fallen into the share of petitioner no.1. Learned counsel for the petitioner has referred to Annexure-2 to the petition, which is photo copy of the certified copy of the final report dated 31.5.1998 submitted by the police. While referring to Annexure-2 , learned counsel for the petitioners has argued that during the investigation even the police, which is the statutory Investigating Agency has found the 5 dispute as civil dispute and accordingly, learned counsel for the petitioners has prayed for quashing of both the orders. 6. Sri Raj Ballabh Singh, learned counsel appearing on behalf of the State has vehemently opposed the prayer of the petitioners. He submits that in the present case it is true that the complainant was none else, but the father of petitioner no.1. However, merely on the ground of relation of father and son the prosecution cannot be considered as malicious prosecution. He has further submitted that perusal of complaint petition itself discloses commission of offences, which cannot be solely termed as a civil dispute. Since offence was committed, the learned Magistrate has rightly taken cognizance of the offences in the present case. It was further submitted that the order of cognizance was challenged before the revisional court and the revisional court by assigning a detailed reason has rejected the revision preferred by the petitioners. It was further argued that since the revision petition was rejected by the learned Sessions Judge, the present petition ought to be rejected on the ground that petitioners in the garb of invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure have virtually filed a second revision, which is barred under Section 397 (3) of the Code of Criminal Procedure. Accordingly, the learned State Counsel has prayed for rejection of the present petition. 7. Besides hearing learned counsel for the 6 parties, I have also examined the materials available on the record. So far as the stand taken by the learned counsel for the petitioners that a finding was recorded by the Investigating Agency , while submitting final form, I am of the view that in the present case, this Court is required to examine the materials relating to the complaint petition, i.e. Complaint Case No.34( C) /99 . The learned Magistrate in the present complaint petition after examining the materials available on the record has passed the order of cognizance. On perusal of the order of cognizance, coupled with the averments made in the protest –cum- Complaint Petition, it is evident that the complainant was apprehensive about unfair investigation and he was expecting that the Investigating Agency will not do justice with the case , as such, specific averment was made in paragraph 4 of the complaint petition . Since the complainant before submission of final form has already approached the Magistrate court and shown his apprehension, the learned Magistrate has rightly proceeded with the complaint case and thereafter by the impugned order, he has taken cognizance of the offences. Prima facie, I do not find any error in the order of cognizance. Moreover, in a situation, where cognizance order was challenged by the petitioners before the revisional court and criminal revision was rejected, there was hardly any scope for the petitioners to invoke the inherent jurisdiction of this Court. Moreover, the filing of the present petition can be 7 termed as second revision, which is barred under Section 397(3) of the Code of Criminal Procedure. Without recording any opinion on the maintainability of the present case in view of the facts and circumstances of the present case, I am not inclined to interfere or exercise power under Section 482 of the Code of Criminal Procedure in favour of the petitioners. 8. Accordingly, the petition stands rejected. 9. In view of rejection of the present petition, the interim order of stay stands automatically vacated. Keeping in view the fact that the matter remained pending before this Court for about 10 (ten) years, it is desirable to direct the court below to proceed with the case expeditiously. 10. With the above observation and direction, the petition stands rejected. 11. Office is directed to send this order to the court below forthwith. Patna High Court, Patna Dated : the 10th Mary,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )