Criminal Miscellaneous No.33486 OF 1999 ------ In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.JANKI PASWAN @ JANKI RAM @ Janki Ram son of late Lalji Paswan. 2.Nageshwar Paswan @ Nageshwar Ram 3. Bijendra Paswan @ Bijendra Ram 4.Rabindra Paswan @ Rabindra Ram 5.Yogendra Paswan @ Jogendra Kumar All sons of Janki Paswan 6.Kuldip Paswan son of late Ratan Paswan 7.Bhim Paswan @ Bimal Paswan son of Ramjit Paswan 8.Rampati Paswan son of late Swaroop Paswan 9.Ramjit Paswan son of Malid Paswan 10.Mahender Pawan 11.Dharmender Paswan Both sons of Rampati Paswan All the above named petitioners are resident of village Dhanawa, P.S.-Daud Nagar, Dist.-Aurangabad (Bihar) 12.Parikha Paswan son of late Birjan Paswan Resident of village-Malkope, P.S.-Baroon, Dist.-Aurangabad (Bihar) …… …..Petitioners Versus 1.STATE OF BIHAR 2.Vijay Yadav son of late Roop Narayan Yadav Resident of village-Dhanawa, P.S.-Daud Nagar, Dist.-Aurangabad (Bihar) …… …..Opp. Parties. ------- For the petitioners: Mr.Ghayasuddin Khan For the State : Mrs. Indu Bala Pandey, Addl. Public Prosecutor ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. Twelve petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of order dated 20.9.1999 passed by Shri B.P. Sinha, Judicial Magistrate, Ist Class, Aurangabad in Complaint Case No.216 of 1999, Tr. No.866 of 1999. By the said order, after conducting enquiry, the learned Magistrate was satisfied that prima facie case under Sections 147, 2 323, 448, 504 and 379 of the Indian Penal Code was made out and accordingly, ordered to issue summon to the accused i.e. petitioners. Mr. Gyasuddin Khan, learned counsel for the petitioners, while challenging the impugned order, submits that the present complaint petition was filed maliciously and some incorrect fact was incorporated in the complaint petition. It was also argued that since in relation to the same occurrence on the basis of fardbeyan of petitioner no.1, an F.I.R. vide Daudnagar P.S. Case No.24 of 1999, G.R. No.414 of 1999 for the offence under Sections 144 and 379 of the Indian Penal Code was instituted against the informant and others, the complainant, who was one of the accused in Daudnagar P.S. Case No.24 of 1999, in retaliation has filed the present complaint petition. Learned counsel for the petitioners, while referring to paragraph-4 to the petition, has further argued that a proceeding under Section 144 of the Cr.P.C. was instituted in the court of Sub Divisional Officer, Daudnagar in respect of land in question i.e. Khata No.28, Plot No.76 and the learned Sub Divisional Magistrate, on the basis of materials available on record, had passed the order in favour of the petitioners on 14.10.1998 and petitioners were continuing in peaceful possession over the land. The complainant in the complaint petition alleged that the petitioners were un-authorizedly harvesting over the land of the complainant and when it was objected the petitioners abused and assaulted the informant. After filing the complaint petition, the 3 complainant was examined on S.A. and three witnesses were examined as enquiry witnesses, who supported the complainant’s case and thereafter, the learned Magistrate oblivious of the fact that earlier first information report was filed by the petitioner no.1 against the complainant, has passed the impugned order in mechanical manner. Learned counsel for the petitioners, by referring to Annexure-7 to the petition, which has been brought on record by filing supplementary affidavit, submits that in Daudnagar P.S. Case No.24 of 1999, the complainant in the present case was put on trial and thereafter, he was found guilty by the court and was convicted and sentenced for one year in G.R. No.2161 of 1998, T.R. No.720 of 1999. It was also submitted by the learned counsel for the petitioners that even after filing of the first information report i.e. Daudnagar P.S. Case No.24 of 1999, the complainant and other accused persons again committed offence and thereafter, a separate F.I.R. vide Daudnagar P.S. Case No.165 of 1999 for the offence under Sections 144 and 435 of the Indian Penal Code was registered in which the complainant was one of the accused. On the aforesaid grounds, it has been argued that the present complaint petition has been filed maliciously and as such the order of cognizance and the entire proceedings in Complaint Case No. 216 of 1999 is liable to be set aside. In the case, despite valid service of notice on opposite party no.2, he did not choose to enter appearance in the present case. 4 I have also heard Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State. She has opposed the prayer of the petitioners. Besides hearing learned counsel for the petitioners and the State, I have examined the materials available on record in the present case. In the present case nucleos of the occurrence is plot i.e. Plot No.76 appertaining to Khata No.28 and the complainant in the present petition had alleged that the petitioners were un- authorizedly harvesting over the said plot. However, on perusal of Annexure-4 as well as the claim of the petitioners, it appears that the petitioners were in peaceful possession over the land in question and for an occurrence over the said land, the petitioner no.1 had instituted a first information report against the complainant and other accused persons, which ended in conviction of the complainant. After filing of the first information report i.e.Daudnagar P.S. Case No.24 of 1999, which was registered on 13.3.1999, the present complaint was filed by the complainant at a belated stage on 6.4.1999. After perusing the materials available on record, this Court is of the opinion that the complaint petition was not filed honestly but the same was filed with an oblique motive and allowing the proceeding on such complaint petition, will certainly amount to allowing abuse of process of the court. In the case, by order dated 11.2.2000, further proceeding in the court below was directed to remain stayed. Keeping in view the materials available on record as well as on the ground of pendency of the present case for such a 5 Patna High Court The 6th July,2010 Md.S/NAFR) long time, it is not desirable to direct the petitioners to participate in a proceeding before the court, which, prima facie, was filed maliciously. Accordingly, the order of cognizance dated 20.9.1999 is hereby set aside and the petition stands allowed. (Rakesh Kumar)