Criminal Miscellaneous No.4561 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1073. ---- 1. NAND LAL SHASTRI @ NAND LAL PASWAN 2. NASIB LAL PASWAN BOTH SONS OF NATHUNI PASWAN, RESIDENT OF VILLAGE: MAHESPATTI, P.S: BISHANPUR, DISTRICT: DARBHANGA. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. DIGAMBER CHOUDHARY S/O SHIV LOCHAN CHOUDHARY, RESIDENT OF VILLAGE : PANCHOBH, P.S: BISHANPUR, DISTRICT: DARBHANGA. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S Ashwini Kumar Singh,Sr.Adv. Pankaj Kumar Das,Adv. For the State : Mr. Amarendra Prasad, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. While the case was taken up, Shri Ashwini Kumar Singh, learned Senior Counsel informed the court that petitioner no.2 died during the pendency of this petition. Accordingly, case of petitioner no.2 abates. 2. Now sole petitioner before this Court has prayed for quashing of order dated 5.2.1999 passed by Ist Additional Sessions Judge, Darbhanga in Cr. Revision No.151 of 1995. By the said order, the learned Additional Sessions Judge has rejected the revision application of the petitioner, which was filed against the order dated 30.9.1994 passed by the - 2 - Chief Judicial Magistrate, Darbhanga and order dated 1.6.1995 passed by Shri A.J. Shrivastava, Judicial Magistrate, 2nd Class, Darbhanga in Criminal Case No.486 of 1993. 3. By order dated 30.9.1994, the Chief Judicial Magistrate, Darbhanga had taken cognizance for the offence under Section 379 of the Indian Penal Code and by order dated 1.6.1995, the learned Judicial Magistrate, 2nd Class, Darbhanga had rejected the petition filed by the petitioner for recall of order of cognizance dated 30.9.1994. 4. Short facts of the case is that on 6.6.1989 on the basis of a written application of opposite party no.2, an F.I.R. vide Bishanpur P.S. Case No.67 of 1989 was registered for the offence under Sections 379 and 427 of the Indian Penal Code. It was alleged by the informant/opposite party no.2 that three accused persons, namely, Nathuni Paswan, his two sons, Nand Lal Shastri and Nasib Lal Paswan had committed an offence of cutting a ‘PAKAR’ tree, which was standing on a government land. In the said occurrence, by way of cutting the tree, theft for an amount of Rs.5,000/-, that was cost of the tree, was committed. After registering the case, police investigated the same. However, during investigation, - 3 - the allegation was found as untrue and, accordingly, police submitted final form on 25.7.1989. After submission of the final form, the opposite party no.2 filed a protest petition on 3.8.1989. The learned Magistrate by its order dated 24.5.1993, while accepting final form submitted by the police, treated the protest petition of the opposite party no.2 as complaint. In the said complaint, after enquiry by the impugned order dated 30.9.1994, the learned Magistrate took cognizance of the offence under Section 379 of the Indian Penal Code. 5. Shri Ashwini Kumar Singh, learned Senior Counsel, while challenging the order passed by the revisional court as well as two orders passed by the Chief Judicial Magistrate, Darbhanga and Judicial Magistrate, 2nd Class, Darbhanga dated 30.9.1994 and 1.6.1995 respectively, submits that the initiation of proceeding on the protest-cum-complaint petition of opposite party no.2 is out and out a malicious prosecution. He has argued that in the case, alleged date of occurrence was 28.5.1989. However, after the period of limitation as prescribed under Section 468 of the Cr.P.C., the learned Magistrate took cognizance for the offence on 30.9.1994. He further submits that the allegation was thoroughly investigated by the - 4 - investigating agency and during investigation, the material was collected showing the fact that land over which the said ‘PAKAR’ tree was standing was actually purchased by Nathuni Paswan, father of petitioner no.1. According to Shri Singh, the opposite party no.2 had initially filed a false F.I.R. and even after conclusion of the investigation resulting in submission of final form, the complainant filed a protest petition and on that protest petition, the present proceeding has been initiated against him. Accordingly, he has prayed for quashing of the order of revisional court as well as two orders of Chief Judicial Magistrate and Judicial Magistrate, 2nd Class respectively. 6. In this case, on 9.8.1999, the present petition was admitted for hearing. While admitting the case for hearing, this Court had directed for issuance of notice to opposite party no.2 and it was also directed that during the pendency of this application, the further proceedings in Cr. Revision No.151 of 1995 in the court below shall remain stayed. Inspite of notice to the opposite party no.2, none has appeared on his behalf. 7. I have examined the materials available on record and the impugned orders, in ordinary course, - 5 - after rejection of revision petition, which was filed against the order of cognizance as well as against the rejection of recall petition, the present petition was not required to be entertained. However, in view of peculiar facts and circumstances of the present case, I feel inclined to exercise jurisdiction under Section 482 of the Cr.P.C. Even on perusal of the F.I.R., it appears that on an alleged date of cutting tree from the government land, it appears that informant had informed the Circle Officer and when no step was taken by the Circle Officer, the petitioner filed a written report before the police. It appears that by way of mentioning this fact, the opposite party no.2 had tried to explain the delay in filing the F.I.R. So far as allegation of cutting tree from the government land is concerned, it was the Circle Officer or other government official, who were competent to lodge the case. Of course, in criminal matter, it is not required that who will make a complaint. In a criminal case any one can set the law into motion, but in any event, the said allegation was investigated by the police and police found that the allegation of the petitioner was totally untrue. It was found during investigation that land over which the alleged tree was standing was purchased by the father of petitioner - 6 - PATNA HIGH COURT Dated 8.4.2010 N.A.F.R./N.H. no.1 and as such the filing of complaint petition even after submission of the final form by the police and initiation of the proceeding pursuant to such protest- cum-complaint petition appears to be an abuse of process of the court. The court is satisfied that the opposite party no.2, by way of initiating the present complaint petition, has abused the process of the court. In this situation, it would necessary for this Court to intervene into the matter and for the ends of justice as well as for preventing abuse of the process of the court, I hereby set aside the order dated 5.2.1999 passed by Additional Sessions Judge, Darbhanga in Cr. Revision No.151 of 1995 as well as order dated 30.9.1994 and all subsequent proceeding pursuant to the present complaint case so far as it relate to petitioners. 8. Accordingly, the petition stands allowed. ( Rakesh Kumar,J.)