Criminal Miscellaneous No.14070 OF 1999 An application under Section 482 of the Code of Criminal Procedure ------------- Ajit Kumar Singh,S/O Late Ramjeewan Prasad Singh, Officer Incharge, Turkaulia Police Station- Turkaulia, District-East Champaran ------------------ Petitioner Versus 1. THE STATE OF BIHAR 2. Ram Chandra Prasad, S/O Chotu Prasad, resident of Mohalla- Chandmari, P.S. Motihari Town, District- East Champaran ---------------- Opp.Parties. ---------- For the petitioner : S/Sri Shri Prakash Srivastava, Anil Kumar, Shyam Kishore Das, Rajiv Ranjan, and Santosh Bharti, Advocates For Opp.Party no.2 : Mr. Amish Kumar, Advocate For the State : Smt. Indu Bala Pandey, A.P.P. ----------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, who was at the relevant time Officer Incharge of Turkaulia Police Station, District- East Champaran, while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 19.3.1999 passed by Sri Awadhesh Mall, Judicial Magistrate, Motihari in connection with Tr.No.1166 of 1999 (arising out of Complaint Case No.1502 of 1998.). By the said order, the learned Magistrate has taken cognizance of offence under Sections 148,323,504,380 and 457 of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2, who was at the relevant time an Advocate of Civil Court, Motihari, filed a 2 complaint vide Complaint Case No. 1502 of 1998 alleging therein that this petitioner along with other police officials in an odd hour in the night of 1st/ 2nd November, 1998 forcibly entered into his house and also abused the complainant. It was alleged that the police officials also assaulted the brother of the informant. Further allegation is that the accused persons forcibly took away some articles from the house of the complainant. After filing the complaint petition, the complainant was examined on S.A. and in support of Complaint petition, three witnesses were examined at the enquiry stage. After examining the materials available on the record, by order dated 19.3.1999 the learned Magistrate has taken cognizance of the offences as mentioned above. 3. Sri Shri Prakash Srivastava, learned counsel appearing on behalf of the petitioner firstly argued that the petitioner, while discharging his official duty, had visited the house of the complainant on a suspicion that one of the accused in a Bank robbery case was hiding in the house of the complainant. It was alleged that one of the brothers of the complainant was wanted in the case and only after getting the information that he was hiding in the said house, the petitioner being a member of the raiding party had raided the house of the complainant. He submits that since he had visited the house of the complainant , while discharging his official duty on the order of the superior officer , the learned Magistrate before taking cognizance was required to examine as to whether prosecution sanction was granted or not. He submits that in absence of sanction for prosecution the order of cognizance is liable to be set aside. Learned counsel for the petitioner 3 further submits that neither in the complaint petition nor in the evidence of any witness any overt act has been alleged against this petitioner. Learned counsel for the petitioner has specifically referred to the deposition of witnesses (typed copies of which have been enclosed along with the present petition) and submits that none of the witnesses have alleged any overt act against this petitioner and on those grounds he has prayed for quashing of the order of cognizance. 4. Sri Srivastava while relying on a Judgment of Hon’ble Supreme Court reported in 2008 (1) PLJR 82 (SC);Indra Mohan Goswami & Anr Vs. State of Uttranchal & Ors. ,has argued that while exercising power under Section 482 of the Code of Criminal Procedure , in the facts and circumstances of the present case it is necessary that this Court may interfere even though the case is at the very initial stage of the cognizance. Learned counsel has referred to paragraph nos.23, 24,26,28,30 and 31 of the Judgment of Indra Mohan Goswami’s case (Supra). 5. Sri Amish Kumar, learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioner. He submits that it is not indispute that on the date of occurrence, no warrant of arrest was issued by the competent court. The learned counsel, while referring to paragraph no. 6 of the petition, submits that the petitioner has made an incorrect statement. He further submits that the petitioner has stated in the said paragraph that the brother of the complainant, namely, Harendra Kumar, was an absconder in Turkaulia P.S. Case No.176 of 1998 for offence under Section 394 of 4 the Indian Penal Code and the petitioner along with higher police officials had only knocked the door of Opp.Party no.2 . He has further referred to paragraph -13 of the petition, wherein it has been stated that chargesheet against Chuman Sah and Rama Rakha Bhagat was submitted showing Harendra Kumar as absconder on 7.1.1999. Sri Kumar submits that the statement made in these two paragraphs of the petition is itself contradictory to each others. He submits that when the petitioner himself admits that the brother of the complainant, i.e. Harendra Kumar was declared absconder on 7.1.1999, there was no occasion to mention the fact that on the date of occurrence, i.e. 1/2.11.1998 the brother of the complainant was absconder. Sri Kumar further submits that the ground taken by the learned counsel for the petitioner that no overt act has been alleged during the evidence or in complaint petition is not sustainable in view of the fact that in the complaint case there is specific allegation that all the accused persons including this petitioner forcibly entered into the house of the complainant and moreover, Section 148 of the Indian Penal Code has also been included in the complaint petition. He further submits that at this preliminary stage, those evidence may not be looked into. Accordingly he has prayed for rejection of the present petition. 6. Smt. Indu Bala Pandey, learned counsel appearing on behalf of the State has supported the stand taken by Sri Amish Kumar, learned counsel for Opp.Party no.2. 7. Besides hearing learned counsel for the parties I have also examined the materials available on record as well as the impugned 5 order. Prima facie, I do not find any error in the order of cognizance. Moreover, the complaint petition categorically discloses that without any authorization by the competent court, the accused persons had entered into the house of the complainant in the night in between 1st/2nd November, 1998. The complaint petition further discloses that during the said alleged search, brother of the complainant was also assaulted. 8. So far as the arguments advanced by the learned counsel for the petitioner regarding exercise of power under Section 482 of the Code of Criminal Procedure as well as the Judgment referred to above , I am of the view that the Hon’ble Supreme Court in the said Judgment has reiterated that the power under Section 482 of the Code of Criminal Procedure can be exercised in a case where the court is satisfied that there is abuse of the process of the court or for the ends of justice it is necessary to interfere . 9. In the facts and circumstances of the present case, I do not find that the order of cognizance can be termed as an abuse of the process of the court. Accordingly, I am not inclined to interfere with the order of cognizance and the petition stands rejected. 10. In view of the rejection of the present petition, the interim order of stay dated 27.8.1999 stands automatically vacated. Let a copy of this order be sent to the court below forthwith. Patna High Court,Patna Dated : the 28th April,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )