IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.38430 of 2004 1. SHEIKH FIRASAT 2. Sheikh Musa, 3. Sheikh Isha 4. Sheikh Arif All sons of late Sheikh Abid, resident of Village- Jokar, P.S. Azamnagar, District- Katihar. . . . . . . Petitioners. Versus 1. THE STATE OF BIHAR & 2. Sheikh Jahur, son of Late Sheikh Sairul, resident of village- Imamnagar, P.S. Azamnagar, District- Katihar. . . . . Opposite Parties. For the Petitioners : Mr. Sidhendra Narain Singh, Advocate For Opp. party no.2 : Mr. P.K. Jipuriyar, Advocate For the State : Smt. Indu Bala Pandey, A.P.P. ----------- 10/ 18.12.2009 Heard. The petitioners have prayed for quashing the entire criminal proceeding of Complaint Case no. 83 of 2003 filed by opposite party no.2 as well as for quashing the order taking cognizance dated 12.02.2004 under Sections 365/34 of the Indian Penal Code. The Complainant Sheikh Jahur states that his mother, and father of the accused persons, are own sister and brother. He states that a partition suit is pending in the Court of Munsif, Katihar bearing partition suit no. 197 of 1989. As per prosecution case, on 09.10.2002 the complainant’s mother, Mostt. Mofia,had gone to Katihar for making Pairvi in title suit no. 197 of 1989. At 5.30 P.M. in the evening, she started back after attending the court by a train. The complainant had gone to Dilli Devanganj station to receive his mother. However, he could not meet his mother, as she got down on the other side of the platform at about 6.30 P.M. The complainant on his way met Sheikh Saukat and Sheikh Nazim, who informed that his mother was seen returning home along with accused persons. As soon as the complainant - 2 - reached near Kabristan, he heard cry of his mother. The complainant also raised hulla and ran in the direction from which sound was heard. The complainant stated that he and witnesses saw the four accused persons forcibly carrying away his mother taking benefit of darkness. The complainant fully believes that accused persons have abducted his mother with a motive to kill her. The complainant examined six witnesses apart from his own examination on SA. The learned Magistrate took cognizance and summoned the petitioners to face trial under Section 364/34 of the Indian Penal Code. The petitioners assail the impugned order on the following grounds mainly: (i) That the allegation in the complaint is absurd and the prosecution is malicious, (ii) The learned Magistrate directed the complainant to file documents regarding civil suit which he would not have done in course of enquiry, (iii) The complainant’s mother is alive as Pairvi has been filed in T.S. No. 197 of 1989 stating that she is ill even after date of alleged kidnapping. Learned counsel submits that learned Magistrate while taking cognizance cannot look into extraneous documents. Learned counsel has relied upon decisions in the case of Ram Kumar Pandey Vs. The State of Bihar & Ano. reported in 1979 BBCJ 239, Naresh Singh & 2 others Vs. the State of Bihar reported in 1988 PLJR 216 as well as in the case of Oriental Insurance Co. Ltd. & Ors. Vs. The state of Bihar & Anr. reported in 2004 (2) PLJR 458 at para. 22. Mr. Praveen Kumar Jaipuriar, learned counsel appearing for the opposite party no.2 submits that it would appear from the impugned - 3 - order dated 12.02.2004 that learned Magistrate has not considered any extraneous documents, while taking cognizance. He submits that it would appear from order taking cognizance, that learned Magistrate only perused the complaint petition, statement of complainant on SA and the six witnesses examined during enquiry under Section 202 of Cr.P.C. Thus, he submits that the Magistrate did not consider any extraneous documents while taking cognizance. He further submits that the cases relied upon by the petitioner would not be applicable in this case. In all those cases initially F.I.R. was instituted. After investigation, the police submitted final form. The case then proceeded on protest-cum-complaint. This Court in the aforesaid cases held that the Magistrate cannot look into the police case, which preceded filing of the complaint and any perusal of the same would vitiate the order taking cognizance. In case of Ram Kumar Pandey (Supra) reported in 1979 BBCJ 239 an FIR was lodged. Complainant / opposite party filed a petition of complaint on 21.11.1973 dissatisfied with the police investigation and made a prayer that the accused persons should be summoned and put on trial. The police subsequently, submitted final form under Section 173 of Cr.P.C. saying that the case was maliciously false. The Chief Judicial Magistrate examined the complainant on SA and some witnesses in enquiry under Section 202 of Cr.P.C. and took cognizance also looking into the case diary. In these circumstances, the Division Bench held that the Magistrate taking cognizance on a complaint-cum-protest cannot look into a police, the relevant passage of - 4 - paragraph 6 is quoted hereinbelow for easy reference: “Now the question is as to whether the same bar regarding perusal of the statement and materials collected during the police investigation is applicable in cases where the Magistrate issues process to the accused concerned to appear before him. It is true that under Section 204 nothing is mentioned in respect thereof, Section 204 says that if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding, then he may issue summons or warrant, as the case may be. On the basis of what materials this opinion is to be formed is not specified in section 204. In my opinion, in complaint cases he cannot form this opinion for the purpose of summoning an accused on materials other than the materials on the complaint under section 203, otherwise it will lead to an anomalous position. Whether the petition of complaint should be dismissed or the accused concerned should be summoned, the opinion has to be formed at the same time. If on perusing the materials mentioned in section 203 the Magistrate is of opinion that the petition of complaint should not be dismissed then he has to summon to accept this contention which has been raised on behalf of the State that although it is not permissible to look into the police papers and the statements recorded during the investigation which preceded the filing of the petition of complaint, for purpose of dismissing the petition of complaint but those very papers and statements can be looked into it the Magistrate is of the opinion that accused persons should be summoned.” In case of Naresh Singh (supra) the Division Bench observed that the Magistrate while taking cognizance have looked into the police papers and affidavit filed in connection with police case which had preceded filing of the protest-cum-complaint. The Division Bench - 5 - while referring to the case of Ram Kumar Pandey (supra) observed that it was not permissible for the Magistrate to look into the police papers while taking cognizance on protest – cum – complaint. The relevant extract of paragraph 10 of the judgment is quoted hereinbelow: “. . . .that even for the purpose of summoning an accused the Magistrate should not take into consideration the result of the police investigation or materials collected during the police investigation which had preceded the filing of the petition of complaint. From the impugned order it appears that the learned Magistrate has stated in detail about the institution of the police case and for the purpose of finding out prima facie case he has placed reliance on the result of the investigation by the police as well as the affidavit filed during the investigation. In my view, this was not permissible.” In Oriental Insurance Company Ltd. and Ors Vs. The State of Bihar (supra), a Division Bench of this Court was also considering the scope and ambit of power under Section 482 of Cr.P.C. and the documents which a Magistrate would see at the time of taking cognizance. The learned Judge in paragraph 22 of the judgment observed: “that power under Section 482 Cr.P.C. is to be sparingly exercised and in the case of quashing of the complaint or cognizance order. However, in certain situation order taking cognizance can be quashed, if the complaint is patently absurd and inherently improbable that no prudent person can overreach the conclusion that there is sufficient ground for proceeding against the accused”. Learned counsel for the petitioners submits that the - 6 - prosecution case on plain reading would not inspire confidence. Further more, he submits that it would appear from Hazri filed on 09.12.2002 on behalf of the kidnapped women in Title Suit no. 197 of 1989 by her lawyer, that she was sick and thus unable to attend the court. Further more, he submits that Hazri filed on 09.12.2002 on behalf of kidnapped woman in T.S. No. 197 of 1989 by her lawyer wherein it was stated that she is not able to come to Court on account of illness, cannot be relied upon for quashing the prosecution case for the following reasons. Firstly; the aforesaid document is defence of the petitioners. Secondly; the Hazri dated 09.12.2002 does not bear the signature of the kidnapped woman and the same has not been filed on affidavit by any of the family members. As such the magistrate taking cognizance could not have looked into the aforesaid documents for the purpose of summoning the petitioners. So far as the point of improbability and absurdly raised by the petitioners is concerned, it would appear that complaint case has been duly supported by six witnesses in course of enquiry under Section 202 of Cr.P.C. As such at this stage, such serious case of abduction and kidnapping with intend to murder could not be quashed on the plea of being improbable in view of consistent prosecution witnesses. In the result, this application fails and is accordingly dismissed. Uday/ A.F.R. (Samarendra Pratap Singh, J.)