CRIMINAL MISCELLANEOUS No.34294 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------ Baijnath Singh S/O Late Ram Laulin Singh, resident of Village- Imadpur, Police Station-Bhagwanpur, District-Vaishali --------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Bhola Singh, S/O Late Yadunandan Singh, resident of Village- Imadpur, Police Station-Bhagwanpur, District-Vaishali -------------------- Opp.Parties. ------------------- For the petitioner: S/Sri B.K.Shukla, and Vijay Kumar, Advocates For the State : Smt. Veena Rani Prasad, A.P.P. -------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 30.9.2000 passed by Sri A.K.Sharma, Judicial Magistrate , 1st Class, Hajipur ( Vaishali) in Complaint Case No.1459 of 2000. By the said order, the learned Magistrate has taken cognizance of offences under Sections 323 and 392 of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2 , father of one Dharmendra Kumar filed a complaint vide Complaint Case No. 1459 of 2000 in the court of the learned Chief Judicial Magistrate, Vaishali at Hajipur alleging therein that on the date of occurrence, i.e. on 31.7.2000 at about 7.00 P.M. while he was returning from the market along with his son Dharmendra Kumar, seven accused persons including the petitioner intercepted the complainant and his son at the railway gate ( Imadpur Railway Dhala-38) . It 2 was alleged that accused persons, particularly this petitioner and Satyendra Singh took out revolvers from their pockets and snatched bicycles from the informant and his son and after putting his pistol on temporal region of the complainant, the petitioner forcibly took out Rs.3500/- from the pocket of the complainant and H.M.T. Quartz watch for an amount of Rs.1200/- was also looted. In the said occurrence, the complainant and his son were also assaulted. After filing of the complaint petition, the complainant was examined on S.A. and at the enquiry stage, three witnesses were examined and thereafter by the impugned order, i.e. by order dated 30.9.2000 the learned Magistrate took cognizance of the offence, as stated above. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 3.9.2001, while issuing notice to Opp.Party no.2, this Court had directed that in the meantime further proceedings in Complaint Case No.1459 of 2000 now pending before the Magisterial Court at Hajipur ( Vaishali) shall be stayed. In spite of service of notice, Opp.Party no.2 has chosen not to appear and, as such, on 2.11.2001 this application was admitted for hearing and it was directed that the interim order dated 3.9.2001 shall remain operative during the pendency of this application and the same is still continuing. 4. Despite the fact that Opp.Party no.2 has entered his appearance through his counsel, at the time of hearing none has come forward on his behalf. This case was partly heard on 28.7.2010 and it was adjourned for further hearing. Today again, none has appeared on behalf of Opp.Party no.2. 5. Sri B.K.Shukla, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance has mainly argued that the 3 prosecution in the present case was initiated by Opp.Party no.2 maliciously and on the ground of malicious prosecution itself, the entire proceeding including order of cognizance is liable to be set aside. It was further argued that in complaint petition itself, the complainant has asserted that after the occurrence, when he went to Bhagwanpur Police Station, he was asked by the Police Officer to go and lodge case in G.R.P. Sonepur since occurrence had taken place within the railway jurisdiction. However, the complaint was filed in the court of learned Chief Judicial Magistrate, and despite the fact that for an occurrence , which had taken place within the territorial jurisdiction of the Railway Magistrate, the Chief Judicial Magistrate, Vaishali at Hajipur under Section 192 of the Code of Criminal Procedure transferred the case to the court of Sri A.K.Sharma , Judicial Magistrate, 1st Class, Vaishali at Hajipur for its enquiry and trial and the learned Magistrate, who has taken cognizance of offence , is not competent either to take cognizance or to try the present case since in the case occurrence had taken place beyond the territorial jurisdiction of the learned Judicial Magistrate, Vaishali at Hajipur. 5. Sri Shukla , learned counsel appearing on behalf of the petitioner, while arguing for quashing the prosecution on the ground of malicious prosecution, has referred to Annexure-2 to the petition, which is a photo copy of the certified copy of the F.I.R. of Bhagwanpur P.S. Case No.93 of 2000, which was registered on 1.8.2000. While placing the F.I.R. it was submitted that on 1.8.2000 itself in the morning at about 4.00 A.M. the son of complainant in the present case along with other seven accused persons had intercepted the petitioner, while he was going to catch a train at Bithauli Railway Station. It was alleged that the son of the complainant in the present 4 case, i.e. son of Bhola Singh and others on the point of pistol had scolded the petitioner and also assaulted him. In the said occurrence, it was alleged that the accused persons had forcibly taken Rs.1200/- and a wrist watch costing Rs.900/- from the petitioner. Perusal of Annexure-2 shows that F.I.R. was lodged for the offences under Sections 341,323, 379 and 504/34 of the Indian Penal Code against Dharmendra Kumar S/O Bhola Singh ( Opp.Party no.2) and others. It is further clear from perusal of Annexure-2 that on the same day i.e. on 1.8.2000, the F.I.R. was sent to the court of the learned Chief Judicial Magistrate and it was seen by the learned Chief Judicial Magistrate, Vaishali at Hajipur on 1.8.2000. It was submitted by Sri Shukla, learned counsel for the petitioner that after registering the F.I.R. , the police thoroughly investigated the same and thereafter chargesheet was submitted in the case against the accused persons including the son of Opp.Party no.2 ( informant) . It was submitted that in a calculated way, though the father of accused Dharmendra Kumar filed complaint petition in the court of the learned Chief Judicial Magistrate, Vaishali at Hajipur on 2.8.2000, he mentioned the date of occurrence in the complaint petition as 31.7.2000. It was submitted that the date of occurrence in the complaint petition was purposely mentioned as 31.7.2000 since in the early morning of first case, the son of the complainant had committed the occurrence, for which an F.I.R. as Bhagwanpur P.S. Case No.93 of 2000 was registered. The learned counsel for the petitioner has further submitted that after filing of the complaint petition, at the enquiry stage, out of three witnesses, who were examined as enquiry witnesses, one Ramnath was F.I.R. named accused in Bhagwanpur P.S. Case No.93 of 2000 and he was also subsequently chargesheeted by the police. It was submitted that on the basis of aforesaid facts 5 and circumstances, it is evident that the present complaint petition was filed maliciously and arbitrarily and, accordingly, the order of cognizance is liable to be set aside. 6. Smt. Veena Rani Prasad, learned Addl. Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioner. 7. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on record. On the basis of materials available on record, particularly the fact that one day prior to filing of the present complaint petition, an F.I.R. was lodged as per information given by the petitioner in which son of the complainant was made accused as well as out of three witnesses, who were examined as enquiry witnesses in Complaint Case No.1459 of 2000, one Ram Nath was already accused in Bhagwanpur P.S. Case No.93 of 2000, there is no reason to reject the contention of the learned counsel for the petitioner that the present proceeding was initiated against the petitioner maliciously. The Court is satisfied that it was a case of out and out malicious prosecution and, as such, I feel that it is a fit case for exercising inherent jurisdiction in favour of the petitioner. 8. Accordingly, the order of cognizance dated 30.9.2000 passed by Sri A.K.Sharma, Judicial Magistrate, 1st Class, Hajipur ( Vaishali) in Complaint Case No.1459 of 2000 is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 30th July,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )