Criminal Miscellaneous No.28064 OF 1999 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.NAGINA SAH 2.Mahadeo Sah 3.Basudeo Sah All sons of Badri Sah 4.Motilal Sah son of Nagina Sah 5.Lutawan Sah @ Sheo Nr. Sah son of Mahadeo Sah 6.Mohan Sah son of Basudeo Sah 7.Birendra Sah 8.Surendra Sah Both sons of Mahadeo Sah 9. Harendra Sah son of Motilal Sah All residents of village and P.S.-Masrak, Dist.-Saran at Chapra ….. ….. Petitioners Versus 1.STATE OF BIHAR 2.Yodha Sah son of late Sitaram Sah resident of Village and P.S.- Masrak, Dist-Saran at Chapra …… …….Opp. Parties. ------ For the petitioners: Mr.Rama Kant Sharma, Sr. Adv. and Mr.Narendra Kumar Singh ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------- Rakesh Kumar, J. Nine 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 18.8.1999 passed by Sri Ravi Shankar Upadhyay, Judicial Magistrate, 1st Class, Chapra. By the said order the learned Magistrate has taken cognizance for the offences under sections 147, 149, 323, 448 and 380 of the Indian Penal Code. 2. Short fact of the case is that opposite party no.2 filed a complaint case vide Complaint Case No.1427 of 1999 alleging therein that the accused persons on 10.7.1999 at about 7 2 A.M. broken the lock of the house of the complainant and when it was objected by the complainant the accused persons assaulted and also looted the articles from the house of the complainant. It was alleged in the complaint petition that the accused persons with intent to kill the complainant had assaulted him and on these allegations the complaint petition was filed. After filing the complaint petition, the complainant was examined on solemn affirmation and in support of the allegation two witnesses were examined. Subsequently, by the impugned order the learned Magistrate took cognizance for the offences as mentioned above. Though in the complaint petition offence of attempt to murder was also alleged but the learned Magistrate refused to take cognizance for the offence under section 307 of the Indian Penal Code. Aggrieved with the order of cognizance, the petitioners have approached this court by filing the present petition. 3. On 28.1.2000 while issuing notice to opposite party no.2 this court had directed that in the meanwhile, further proceeding in the court below shall remain stayed. Subsequently, by order dated 11.2.2002 the petition was admitted for hearing and it was directed that during the pendency of this application, interim order dated 28.1.2000 shall remain operative. 4. Despite valid service of notice on opposite party no.2, he has not preferred to enter his appearance in the present case and, as such, at the time of hearing none has come forward to defend the case of opposite party no.2. 5. Mr. Ramakant Sharma, learned senior counsel 3 appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the present petition was falsely filed by the complainant. He submits that in the complaint petition the complainant has suppressed the material fact i.e. regarding the decree which was prepared in favour of petitioner no.1. Nagina Sah and others. He further submits that against the judgment and order passed in Title Appeal No.63 of 1994 though the complainant had preferred second appeal before this court he even suppressed that fact in the complaint petition. Mr. Sharma, learned counsel for the petitioners while referring paragraphs 10 and 11 of the present petition as well as by way of producing certified copy of the report in respect of delivery of possession which was given to the petitioners in Execution Case No.1 of 1995, submits that the report itself indicates that on the alleged date of occurrence i.e. 10.7.1999 the delivery of possession was effected at about 10 A.M. The report makes it clear that while executing the decree the lock which was put by the complainant was broken by the officials who went there for execution of delivery of possession of the property in question. He submits, by referring to the report dated 10.7.1999 in Execution Case No.1 of 1995, that after articles were removed from the disputed house the properties were handed over to the wife of the complainant (certified copy of the report has been filed. Keep it on record). Learned counsel for the petitioners while challenging the order of cognizance further submits that except wife and son of the complainant none has come forward to support the complainant’s case. He submits that the wife of the 4 complainant had taken delivery of possession of the articles removed from the disputed premises during execution of the delivery of possession. It has been alleged in the complaint petition that occurrence had taken place at 7 A.M. on 10.9.1999 while the complaint petition was filed after a delay of nine days i.e. on 19.7.1999. While referring to the complaint petition learned counsel for the petitioners submits that the complainant had asserted that on the date of occurrence at 9 A.M. the complainant had gone to the police station to register the case but it was refused whereas the fact remains that the police officials were present at the alleged house of the complainant where the decree was to be executed in respect of delivery of possession in Execution Case No.1 of 1995. He submits that a title suit was pending in between the petitioner no.1 Nagina Sah and the complainant vide Title Suit No.52 of 1988 which was partly decreed in favour of Nagina Sah. Against that judgment Nagina Sah preferred Title Appeal No.63 of 1994 which was allowed by the appellate court and thereafter the complainant filed second appeal before this court i.e. Second Appeal No.170 of 1998. He further argued that the complainant is an old litigant and on earlier occasion also he had filed several false cases against the petitioner and his family members. He has referred paragraphs 14 and 15 of the petition. He submits that earlier the complainant had filed first information report vide Mashrak P.S. Case No.60 of 1988 for the offences under sections 341, 323, 329 and 379 of the Indian Penal Code in which final form was submitted by the police after investigation. Thereafter 5 again the complainant filed a complaint case vide Complainant Case No.1155 of 1990 which was referred to the police for its investigation and thereafter a case vide Mashrak P.S. Case No.204 of 1990 was registered under section 436 of the Indian Penal Code and in this case also final form was submitted. Again in the year 1995 the complainant filed a case against the petitioners vide Mashrak P.S. Case No.143 of 1995 which too ended in submission of final form. He submits that in view of the facts and circumstances, mentioned hereinabove, it is evident that the present petition has been filed maliciously by the complainant after the complainant lost his claim by the competent civil court and in the case delivery of possession was also given to the petitioners. Accordingly, he has prayed that order of cognizance as well as all subsequent proceedings in the present complaint case be quashed. 6. Mr. Pramod Kumar Pandey, learned counsel appearing on behalf of the State has opposed the prayer of the petitioners. 7. Besides hearing the learned counsel for the parties, I have also examined the materials available on the record as well as certified copy of the report regarding delivery of possession in Execution Case No.1 of 1995 dated 10.7.1999. I am of the view that when execution was effected on 10.7.1999, in a planned manner, the complaint petition was filed after nine days. Accordingly, I am of the view that the present petition has been filed maliciously and allowing such proceeding to further proceed 6 will certainly amount to allowing abuse of the process of the court and with a view to prevent the abuse of the process of the court and also for the ends of justice, it is necessary to interfere at this initial stage of cognizance. 8. Accordingly, the order of cognizance dated 18.8.1999 is set aside and also subsequent proceedings in Complaint Case No.1427 of 1999 so far as petitioners are concerned are hereby set aside and the petition stands allowed. Patna High Court The 27th April, 2010 NAFR/Md.S. ( Rakesh Kumar, J.)