CRIMINAL MISCELLANEOUS No.6448 OF 2007 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. NAWIN KUMAR 2. PRAVEEN KUMAR, BOTH SON OF SATYA NARAYAN MAHTO @ SATTO SHETH 3. AHILYA DEVI, WIFE OF SATYA NARAYAN MAHTO @ SATTO SHETH 4. SATYA NARAYAN MAHTO @ SALTO SHETH, SON OF LATE AYODHAYA MAHTO ALL R/O VILLAGE RANI SAKARPURA, P.S. AND DISTRHCT KHAGARIA. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. SAKINA BEGAM W/O LATE MD. MAKBOOL MIAN,(DIVORCE), R/O VILLAGE LRANI SARKARPURA, P.S. AND DISTRICT KHAGARIA. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S Naresh Dikshit, Adv. Kunal Tiwary, Adv. Manoj Kumar (MK), Adv. For the State : Mr. A.M.P. Mehta, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Four 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 11.1.2007 passed by the Additional District and Sessions Judge, F.T.C.-I, Khagaria in Sessions Trial No.68 of 2006. By the said order, learned Additional Judge has rejected the petition filed on behalf of the petitioners under Section 227 of the Code of Criminal Procedure for their 2 discharge. 2. Short fact of the case is that on the basis of fardbeyan of step son of opposite party no.2, an F.I.R. vide Khagaria(Gangaur) P.S. Case No.349 of 1998 registered for the offence under Sections 302/201/34 of the Indian Penal Code against petitioner nos.1 and 2. In the F.I.R., it was alleged that mother of the informant was maid servant in the house of petitioner no.4. It was alleged by the informant that since his step mother was having illicit relation with petitioner no.4 (father of petitioner nos.1and 2), the petitioner nos.1 and 2 were opposing the said affair. It was alleged that on 22.8.1998, while his mother did not return to house till 8.00 P.M., the complainant started to search his mother and while he reached to the house of petitioner no.4, he saw that petitioner nos.1 and 2 were dragging his mother. Thereafter, he raised alarm and returned back and on 26.8.1998, his fardbeyan was recorded by the Sub Inspector of Police, Gangaur O.P., and an F.I.R. vide Khagaria (Gangaur) P.S. Case No.349 of 1998 was registered on 27.8.1998 for the offence under 3 Sections 302/201/34 of the Indian Penal Code. After investigating the case, it was found that the victim lady was alive and thereafter on the allegation of commission of offence under Sections 364/34 of the Indian Penal Code, charge sheet was submitted against all the petitioners. Subsequently, cognizance order was passed and case was committed to the court of Sessions. At the stage of charge, petition was filed on behalf of petitioners under Section 227 of the Code of Criminal Procedure for their discharge, which was rejected by the learned Additional Sessions Judge, F.T.C.I, Khagaria on 11.1.2007 in Sessions Trial No.68 of 2006. 3. Aggrieved with the rejection of discharge petition, petitioners approached this Court by filing the present petition. On 25.5.2007, while issuing notice to opposite party no.2 i.e. victim lady, this Court directed that in the meantime, further proceedings in Trial No.68 of 2006 arising out of Khagaria P.S. Case No.349 of 1998 pending in the court of Additional District and Sessions Judge, F.T.C.I, Khagaria shall remain stayed. On 2.4.2009, the petition was 4 admitted for hearing and it was directed that interim order dated 25.5.2007 shall continue. The order of stay is still continuing. 4. Shri Naresh Dikshit, learned counsel appearing on behalf of the petitioners, while challenging the order of rejection of discharge petition, at the very outset, has argued that while investigation in Khagaria P.S. Case No.349 of 1998 was pending, the victim lady any how escaped from the clutches of kidnappers and she appeared before the Chief Judicial Magistrate, Khagaria and filed a petition in Khagaria P.S. Case No.349 of 1998 on 22.8.1998 with a prayer for recording her statement under Section 164 of the Code of Criminal Procedure. Learned counsel for the petitioners has referred to Annexure-2 to the present petition at pages 12 to 15, which is the petition filed on behalf of the victim lady for recording statement under Section 164 of the Code of Criminal Procedure. Learned counsel for the petitioner has referred to contents of the petition, which makes it clear that the victim was kidnapped by her Ex-husband and other accused persons. 5 The victim had also disclosed in her petition that the accused persons in connivance with the informant of the present case were trying to finish the victim so that the petitioners may be convicted for the offence under Section 302 of the Indian Penal code. Learned counsel for the petitioners has also referred to Annexure-2A to the petition, which is typed copy of statement of the victim recorded under Section 164 of the Code of Criminal Procedure. At the time of hearing, learned counsel for the petitioners has produced certified copy of the statement recorded under Section 164 of the Code of Criminal Procedure of the victim lady (keep it on record). Learned counsel for the petitioners, while referring to statement of the victim recorded under Section 164 of the Code of Criminal Procedure, submits that the victim lady had made it clear that she was kidnapped by her Ex-husband and other accused persons. Learned counsel for the petitioners has also referred to Annexure-3 to the petition, which is photo copy of certified copy of complaint petition i.e. Complaint Case No.389 of 1998 filed in the court of 6 Chief Judicial Magistrate, Khagaria. The said complaint was filed by the victim lady i.e. opposite party no.2 against seven accused persons including her Ex-husband. The said complaint was filed for the offence under Sections 147, 148, 366, 494 and 376 of the Indian Penal Code. In the complaint petition, the complainant had alleged that during her captive, she was also repeatedly raped by accused persons. In the said case, it has been submitted that by Shri Dikshit, learned counsel for the petitioners that the learned Magistrate had taken cognizance of the offence on 10.10.1998 and thereafter, accused persons had preferred a revision vide Cr. Revision No.157 of 1998. Learned counsel for the petitioners has referred to photo copy of the judgment dated 18th January,2000 passed in Cr. Revision No.157 of 1998, which has been brought on record as Annexure-5 to the petition. It has been submitted that even revision preferred against the order of cognizance in Complaint Case No.389C of 1998 stood rejected. Learned counsel for the petitioners has submitted that even though the entire fact, which has been placed before 7 this Court was brought to the notice of the learned Sessions Judge, while pressing the petition for their discharge, the learned Sessions Judge, only on the principle of availability of strong suspicion, has proceeded with the case and rejected the discharge petition. 5. Shri A.M.P. Mehta, learned Additional Public Prosecutor appearing on behalf of the State does not dispute the contention of learned counsel for the petitioners. 6. Besides hearing learned counsel for the petitioners and the State, I have also perused the materials available on record. After going through the annexures, which have been referred above, the court is satisfied that allowing the prosecution of the petitioners in the present proceeding will amount to allowing the abuse of the process of the court. It is evident that the victim lady had given her statement under Section 164 of the Code of Criminal Procedure in which she had alleged about her kidnapping against other accused persons. She has also disclosed that a conspiracy was hatched to 8 kill her so that for her murder, the petitioners may be held guilty. On allegation of her kidnapping, a complaint proceeding has already been initiated and cognizance order was passed long back. 7. In view of the facts and circumstances of the present case, the court is satisfied that it is a case in the category of exceptional case and as such warrants exercise of inherent jurisdiction in favour of the petitioners. 8. Accordingly, the order dated 11.1.2007 passed in Sessions Trial No.68 of 2006 by Additional Sessions Judge, F.T.C.I, Khagaria as well as criminal proceeding against all the petitioners is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 28.10.2010 N.A.F.R./N.H.