Criminal Miscellaneous No.33059 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- 1. CHANDESHWAR PANDEY, SON OF BHOLA PANDEY 2. ASH NARAYAN PANDEY, SON OF LATE DEV KRIT PANDEY 3. BHOLA PANDEY, SON OF LATE NIRESH PANDEY ALL RESIDENT OF VILLAGE RAGHUNATHPUR, P.S. KESARIYA, DISTRICT EAST CHAMPARAN. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. SHIV SHANKAR PANDEY, SON OF BHOLA PANDEY, RESIDENT OF VILLAGE RAGHUNATHPUR, P.S. KESARIYA, DISTRICT EAST CHAMPARAN. ... ... OPPOSITE PARTIES. ---- For the Petitioners : Mr. Keshri Kishore Sharan,Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- 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 order dated 7.12.1999 passed by Shri R.K. Gupta, Judicial Magistrate, Motihari in Complaint Case No.C 1741 of 1999/Tr. No.1402 of 1999. By the said order, the learned Magistrate has taken cognizance of offence under Sections 341, 323 and 379/34 of the Indian Penal Code. 2. Short fact of the case is that the opposite party no.2 filed a complaint petition vide Complaint Case No. C 1741 of 1999 on - 2 - 14.10.1999 alleging therein that while he came out from the registry office after obtaining certified copy of documents, the complainant was intercepted by the three petitioners and as per order of petitioner no.1 i.e. Chandeshwar Pandey, the petitioner no.2 Ash Narayan Pandey forcibly took Rs.4,000/- from the complainant and thereafter, accused no.3, Bhola Pandey took his H.M.T. watch, which was for an amount of Rs.1500/-. It was disclosed that the said occurrence was seen by witnesses. After filing the complaint petition, the complainant was examined on S.A. and thereafter, in support of the complaint case, one witness, namely, Mandeep Paswan was examined during the enquiry, who supported the allegation made in complaint petition. Thereafter, the learned Magistrate, by the impugned order i.e. order dated 7.12.1999, took cognizance of offences under Sections 341, 323 and 379/34 of the Indian Penal Code and directed for issuance of process against the accused persons. 3. Aggrieved with the order of cognizance, the petitioners approached this Court by filing the present petition and this petition was admitted on 11.2.2000. While admitting, this - 3 - Court had called for lower court records and directed that pending disposal further proceedings in Case No.C 1741 of 1999/Tr. No.1402 of 1999 before the court of Sri R.K. Gupta, Judicial Magistrate, Motihari shall remain stayed. 4. In this case, none has appeared on behalf of opposite party no.2. 5. Shri Keshri Kishore Sharan, learned advocate appearing on behalf of the petitioner, while challenging the order of cognizance, submits that the learned Magistrate in a mechanical manner has passed the order of cognizance. He submits that though petitioner no.1 was own brother of complainant and petitioner no.3 was his father, the complainant, while filing complaint petition, had not even disclosed that they were brother and father respectively. Learned counsel for the petitioners further submits that since the petitioner no.3 was an old and ailing person and he was being neglected by the complainant, who was as elder son, the petitioner no.3 with a view to get proper medical aid as well as for other things, he transferred some land of his share to petitioner no.2. After the petitioner no.3 transferred some land of his share to the - 4 - petitioner no.2, the complainant filed a partition suit and while the partition suit was pending, the complainant with a view to restrain the petitioner no.3 to further transfer any land to any one filed false and fabricated present complaint petition. He submits that perusal of complaint petition, coupled with the fact that petitioner no.3 was his father and petitioner no.1 was his brother, makes it clear that the complaint petition was out and out a false case and as such the learned Magistrate before proceeding with the case, should have examined the entire things and only thereafter, he should have passed order. However, learned counsel for the petitioners submits that the learned Magistrate, in a pure mechanical manner, has passed the impugned order of cognizance. In this case, none has appeared on behalf of opposite party no.2. 6. Accordingly, I myself have examined the lower court records, which was received in this case. On perusal of the record, it is evident that in the complaint petition, the complainant had not disclosed regarding his relation with petitioner nos.1 and 3. Even at the stage of recording his statement on solemn affirmation, he - 5 - firstly did not disclose the fact that petitioner no.1 was his brother and petitioner no.3 was his father. However, on the question of learned Magistrate, he has admitted that petitioner no.1 was his younger brother and petitioner no.3 was his father. 7. In view of the fact as indicated above, I am of the opinion that allowing the proceeding on the basis of such complaint petition will certainly amounts to allowing abuse of process of the court and with a view to prevent the abuse of process of the court as well as for the ends of justice, it is necessary to exercise inherent power in favour of the petitioners and, accordingly, order of cognizance dated 7.12.1999 passed in Complaint Case No. C 1741 of 1999/Tr. No.1402 of 1999 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 19.5.2010 N.A.F.R./N.H.