IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29922 of 2006 BIBHAKAR KUMAR Versus STATE OF BIHAR & ANR ----------- For the petitioner : Mrs. Anjana Prakash, Sr. Advocate and Ms.Juhi Kumari, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : None. _________ O R D E R The petitioner who along with two others was named as accused in the F.I.R. but was not charge sheeted in Jamalpur P.S. Case No.116 of 2005 has prayed for the quashing of the entire criminal proceeding, so far as he is concerned, including the order dated 30.3.2006 passed therein by Sri M. N. Jha, the learned Judicial Magistrate, IInd Class, Munger , whereby he has taken cognizance of offence under Section 379/34 I.P.C. against the two charge sheeted accused as also against the petitioner and while issuing warrant of arrest against the petitioner has directed for issuance of summons to the two charge sheeted accused. One Usha Sinha, the informant, impleaded herein as Opp.Party no.2, submitted a typed report before the Superintendent of Police, Munger, on 29.11.2005 inter alia stating that at about 5 P.M. on 26.11.2005 she boarded a trekker bearing registration no.BR-10P- 6636 at Munger for going to Jamalpur and on the request of the khalasi kept her attaché on the roof carrier of the vehicle. It is alleged that at Jamalpur when the khalasi handed over her attaché to her she - 2 - found the lock open and all the jewellery kept therein missing. On raising alarm the driver and the khalasi fled away but the owner of the vehicle arrived and disclosed the names of the driver and khalasi and also assured to get the stolen jewellery returned to her. She kept waiting at the Stand till 11.00 P.M but neither the driver nor the khalasi came nor was her jewellery returned. When she wanted to approach the police, the owner of the vehicle, the petitioner, threatened her and told her to go home as it was late night and assured to have her jewellery returned to her on the following day. But the same was never returned to her. The submissions advanced on behalf of the petitioner is that he was neither present nor had any nexus with the alleged theft of jewellery and no recovery was made either from his person or possession. It was further submitted that it was clear from the typed report itself that the petitioner had arrived on to the scene only after alarm was raised at Jamalpur. The learned counsel sought to point out that there was no iota of evidence in the case diary against the petitioner and he had rightly not been sent up for trial by the police, but it was the learned Magistrate who took cognizance against him also without assigning any reason therefor presumably because he happened to be the owner of the vehicle in question. The learned counsel also sought to point out the redolent attitude of the learned Magistrate in issuing warrant against the petitioner and summons against the remaining two which only indicates the non-application of mind. - 3 - The informant was duly served with notice but she has chosen not to appear and contest this application. Even the learned A.P.P. is not in a position to defend the impugned order. From the materials available on record, the submissions advanced by the learned counsel for the petitioner appears to be well founded. The prosecution of the petitioner in the circumstances would amount to an abuse of the process of the court. Accordingly, the prosecution of the petitioner only is hereby quashed and the application is allowed. ( Abhijit Sinha, J) Patna High Court ,Patna Dated : the 5th September,2008 Nawal Kishore Singh / A.F.R.