IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54003 of 2007 ASHOK KUMAR AMBASTHA, son of Late-Kameshwar Prasad, presently posted as Uper Division Clerk, Jawahar Novoday Vidyalaya Bafapur Sharma, P.S.-Lalganj, District-Vaishali. Versus 1. The State Of Bihar 2. Pramod Kumar Singh, son of Late Jitendra Singh, resident of Mohalla- Gajadharganj, P.S.+District-Buxar. ……….Opposite Parties. ----------- 04. 26.03.2010 Heard learned counsel for the petitioner. No one appear on behalf of the Opposite Party No. 2. Though it appears from order dated 17.02.2009 that notices were issued to Opposite Party No. 2 but notices could not be served since O.P. No. 2 could not be located as he has moved to Baralei in U.P. which was disclosed to the postal peon by the uncle of the O.P. No. 2. In that circumstance, this Court on 09.07.2009 directed to serve notices on the trial Court counsel for the O.P. No. 2 through the Court of the S.D.J.M., Patna in Complaint Case No. 1751(C) of 2005 and consequently the notices were served on the learned lawyer for the O.P. No. 2, but in spite of that, even today no one appears on behalf of O.P. No. 2. It is submitted on behalf of learned counsel for the petitioner Mr. Pushkar Narayan Sahi that the complainant Pramod Kumar Singh is outsider and in no way connected with the affairs of the Jawahar Navodaya Vidyalaya and has been set up by Mr. Daya Shankar Singh, 2 who was the Deputy Director of Navodaya Vidyalaya Sangathan. Initially a police case was lodged for illegal appointment of one Asharaf Ali which was made on 10.06.1996 with the signature of Daya Shankar Singh in the capacity of Deputy Director and consequently Asharaf Ali joined on 01.07.1996. In the said police case being Krishna Puri P.S. Case No. 82 of 2005 the informant was the Deputy Director of the Navodaya Vidyalaya Samiti in which only Daya Shankar Singh was made an accused. But Daya Shanakar Singh in order to save his skin set up the present complainant who is a fictitious person to lodge the present case and Daya Shankar Singh became witness No. 2 in the present complaint petition. It is further alleged that petitioner and several other employees of the Navodaya Vidyalaya were made accused. Allegation against the present petitioner is that he typed the two letters and entered memo number by which the appointment of one Asharaf Ali was made. It is further submitted that admittedly the appointment has been made by the signature of Daya Shankar Singh the then Deputy Director of Navodaya Vidyalaya Samiti and even if the letters were typed by the petitioner, it was typed on the direction of the superior officers and he has no role 3 to play in the appointment of Asharaf Ali as the power of appointment vest with the Deputy Director, Daya Shankar Singh. It is also submitted that the order of cognizance in the present case was quashed with regard to Dr. Rakesh Kumar Sharma in Cr. W.J.C. No. 115 of 2006 on 20.12.2006 by this Court which is contained in Annexure-3 and also with regard to Man Mohan Swaroop Khanna in Cr. Miscellaneous No. 31694 of 2006 on 20.11.2006 which is contained in Annexure-4. From perusal of both the orders, I find that the petitioners of both the cases were not posted at the relevant time in the Navodaya Vidyalaya in question. My attention has also been drawn towards Annexure-5, the order dated 17.04.2006 passed in Cr. Misc. No. 46365 of 2005 whereby the petitioner was granted Anticipatory bail in the complaint case and in that, direction was given to the police to investigate the police case. Hence Mr. Sahi points out that even while granting anticipatory bail, this Hon’ble Court did not rely on the allegation made in the complaint petition. In this connection, counsel for the petitioner placed reliance in the case of Baijnath Jha versus Sita Ram and Another reported in 2008(8) SCC 77 in which it was held that if the complaint has been lodged with 4 vengeance then in that case power under Section 482 Cr. P.C. can be exercised and this principle has been upheld earlier also in the case of R.S. Raghunath versus State of Karnataka and another reported in 1992(1) SCC 335. Perused the materials on record, I find that one Asharaf Ali was appointed by Daya Shankar Singh, the then Deputy Director of the Navodaya Vidyalaya Samiti and consequently another Deputy Director of the Samiti got instituted Krishnapuri P.S. Case No. 82 of 2005 against Daya Shankar Singh and while the investigation was in progress, the present complainant, Pramod Kumar Singh filed the present complaint case in which the sole accused of Krishnapuri P.S. Case No. 82 of 2005 Mr. Daya Shankar Singh became witness No. 2. The contention of the learned counsel for the petitioner further gets support from the fact that in spite of several endeavourer by this Court to serve notices to the complainants he chose not to appear and he has not appeared before this Court even today. In the complaint petition, the only allegation against the petitioner is that he typed appointment letters with regard to Asharaf Ali and put the letter number on the said letter but this fact has not been verified and it can not be verified in the complaint. I think when a substantive police case being Krishnapuri P.S. Case No. 82 of 2005 is 5 pending the whole issue will be investigated. Moreover even assuming that the petitioner has typed appointment letters, it in no way indicates that he actually appointed Mr. Asharaf Ali. Considering the fact that the substantive police case is pending and the complaint has been filed by a fictitious person on behalf of main accused Daya Shankar Singh and also considering the fact that the order of cognizance has been quashed with regard to Dr. Rakesh Kumar Sharma(Annexure-3) and Man Mohan Khanna(Annexure-4) (of the present quashing application), I do here by quash the order of cognizance dated 20.07.2005 passed in Complaint Case No. 1751(C) of 2005 pending in the Court of S.D.J.M., Patna with regard to the petitioner only. However it is made clear that this order will in no way interfere with the investigation of Krishnapuri P.S. Case No. 82 of 2005. With the aforesaid observations and directions, the application stands allowed. Shageer (Dinesh Kumar Singh, J)