IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.57226 of 2007 1. HASSAN NAYEEM KAHN SON OF LATE ABDUL LATIF KHAN 2. ROKAIYA KHATOON WIFE OF HASSAN NAYEEM KHAN 3. SAKARA KHATOON @ BUNNI DAUGHTER OF HASSAN NAYEEM KHAN 4. SABRA KHATOON DAUGHTER OF HASSAN NAYEEM KHAN ALL RESIDENT OF VILLAGE BARADIH, P.S. AGRER, (SASDARAM), DISTRICT ROHTAS. 5. EFTEKHAR @ EFTEKHAR KHAN @ MUNNA SON OF LATE IMTIHAD ALI KHAN, RESIDENT OF MOHALLA BARA SHEIKHPURA, P.S. SASARAM (T), DISTRICT ROHTAS. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. MD. ADALAT KHAN SON OF SARFUDDIN KHAN, RESIDENT OF VILLAGE MILKI, P.S. PIRO, DISTRICT BHOJPUR. ... ... OPPOSITE PARTIES. ----------- 3. 29.9.2010. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 13.9.2007 passed in Cr. Revision No.162 of 2005 by the Additional Sessions Judge, Fast Track Court No.3, Bhojpur, Ara. By the said order, the learned Additional Sessions Judge has rejected the revision preferred by the petitioner against the order dated 27.1.2005 passed in Complaint Case No.1056(C) of 2004/T.R. No.2216 of 2005 passed by Shri V. Kumar, Judicial Magistrate, Ist Class, Ara, whereby the learned Magistrate had summoned the petitioners. Short fact of the case is that opposite party no.2, claiming to be husband of daughter of petitioner no.1, filed a complaint vide Complaint 2 Case No.1056(C) of 2004 in the court of Chief Judicial Magistrate, Ara at Bhojpur for offence under Sections 341, 342, 498, 120B, 323, 504 and 34 of the Indian Penal code alleging therein that the Accused Nos.1 and 2 had come to the house of the complainant and thereafter, the wife of the complainant went to her parents house. Thereafter, even after vigorous persuasion, his wife never returned to her in-laws house. Subsequently, the complainant went to the house of his wife and accused persons and tried to persuade them to leave his wife and children, but the accused persons abused and assaulted the complainant. Accordingly, the complaint was filed. After conducting enquiry, the learned Magistrate took cognizance of the offence and directed for issuance of processes against the petitioners. Thereafter, the petitioners filed a revision petition vide Cr. Revision No.162 of 2005 and the learned Additional Sessions Judge, F.T.C.III, Bhojpur at Ara, by its order dated 13.9.2007, rejected the revision filed by the petitioners. Aggrieved with the order of issuance of processes as well as order of revisional court, the petitioners approached this Court by filing the present petition. 3 In this case, Mr. Md. Ataul Haque had appeared on behalf of opposite party no.2. Mr. Alamdar Hussain, learned counsel appearing on behalf of the petitioners, while challenging both the orders i.e. order of issuance of processes as well as revision court order, has argued that the present complaint was filed with an oblique motive and maliciously. Learned counsel for the petitioners has referred to Annexure-3 i.e. Complaint Case No.1244 of 1999, which was filed by the petitioner no.1 against the complainant and their family members for the offence under Sections 498A and 406 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, in which the learned Magistrate had already taken cognizance of offence. Cognizance was taken again in the year 2005 in an another complaint vide Complaint Case No.809 of 2005, which was filed against the complainant of the present case and his family members. Both the cases are still pending. Learned counsel for the petitioners has also referred to Annexure-5 to the petition, which is a copy of petition filed under Section 125 of the Code of Criminal Procedure vide Maintenance Case No.58M of 2005 by the daughter of the petitioner no.1, namely, Shaista Khatoon (wife of complainant) and 4 on behalf of her two children. In the said case, it was submitted that notices have also been issued to the opposite party no.2. It was submitted that since the complainant was not maintaining properly the daughter of the petitioner no.1 and she was being tortured, the earlier case was filed in the year 1999 and with a view to create a defence in his favour, the complainant had filed the present complaint petition. Learned counsel for the petitioners, while referring to the averments made in the complaint petition, has further submitted that even no cause of action arose within the territorial jurisdiction of the court of Ara at Bhojpur. While referring to Annexure-1 i.e. complaint petition, it has been argued that the alleged occurrence had taken place within the territorial jurisdiction of Sasaram Court. Learned counsel for the petitioners has submitted that in view of Section 177 of the Code of Criminal Procedure, the learned Magistrate at Ara was not authorized to issue process and proceed with the case. Learned counsel for the petitioners, on the point of malicious prosecution, has relied on a judgment of Hon’ble Supreme Court reported in 2009(9) SCC 682 (M.N. Ojha & ors. Vs. Alok Kumar & ors.). It has been submitted that on the strength 5 of Hon’ble Supreme Court’s judgment referred above, the present prosecution against the petitioners may also be set aside on the ground that the proceeding was a motivated proceeding and filed with an oblique motive. On aforesaid grounds, it has been prayed to quash the order of issuance of process passed by the Magistrate as well as order passed by learned Additional Sessions Judge. Learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioners. He has submitted that it is not a case where entire cause of action arose within the territorial jurisdiction of Sasaram Court, but in the present case, part of the cause of action even arose at Ara and as such in view of Section 178 of the Code of Criminal Procedure, it was open to the complainant to file case either at Ara or Sasaram. It has been submitted that the complaint petition categorically discloses the commission of offence and as such the petition may be rejected. Learned Additional Public Prosecutor, Smt. Indu Bala Pandey has supported the stand taken by the learned counsel appearing on behalf of opposite party no.2. Besides hearing learned counsel for the parties, I have perused the materials available on 6 record. It is evident from the record that even in the year 1999, a complaint was filed by petitioner no.1, who is non-else, but the father of the wife of the complainant on an allegation of commission of offence under Section 498A of the Indian Penal code. Of course, even after filing of the complaint petition, other two criminal proceedings were initiated. In 2005, the daughter of the petitioner along with her two children had filed a petition for maintenance under Section 125 of the Code of Criminal Procedure i.e. Annexure-5 to the petition. In the complaint petition, the allegation, which has been levelled by the complainant appears to be not probable. Moreover, the allegation made in the complaint petition is for an occurrence, which had taken place entirely within the territorial jurisdiction of Sasaram. In view of the facts and circumstances as indicated above, the court is of the opinion that the present complaint was not filed fairly and honestly, but same was filed with an oblique motive and court is of the opinion that on the ground of motivated proceeding, the impugned orders are liable to be set aside. Accordingly, the order dated 27.1.2005 passed by Shri V. Kumar, Judicial Magistrate, Ist 7 N.H./ Class, Ara in Complaint Case No.1056(C) of 2004 as well as order dated 13.9.2007 passed in Cr. Revision No.162 of 2005 by the Additional Sessions Judge, F.T.C.III, Bhojpur at Ara are hereby set aside and petition stands allowed. ( Rakesh Kumar,J.)