IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4763 of 2009 ISHWAR PRASAD GOENKA & ORS . Versus STATE OF BIHAR & ANR . ----------- For the Petitioners :- Sri N.K. Agrawal, Sr. Adv. Sri P.C. Agrawal, Adv. For the Opposite Party No. 2:- Sri Parth Sarthy, Adv. -------------- 4. 14.5.2010 Heard learned counsel for the petitioners, for the State and for the Opposite Party No. 2. The petitioners are all members of the family of one Ishwar Prasad Goenka, petitioner No. 1. They seek quashing of the order dated 15.1.2009 taking cognizance on a Protest-Cum-Complaint Case No. 723 of 2008 under Sections 448, 341, 323 and 379/34 of the Penal Code. Learned counsel for the petitioners submits that the Opposite Party No. 2 is the widow of the deceased nephew of petitioner no. 1, who expired approximately eight years prior to the institution of the allegations. There is a serious property dispute in the family for which another brother of the petitioner no. 1 has filed Title Suit No. 214 of 2003 and Title Suit No. 153 of 2007 against petitioner no. 1 and his brother/father-in-law of the opposite party and other family members. Opposite Party No. 2 has herself filed Partition Suit No. 81 of 2009 and there is Probate Case No. 9 of 1999 pending with regard to the properties in question. Earlier the Opposite Party No. 2 had lodged a 2 complaint case sent for investigation under Section 156(3) leading to registration of Chowk P.S. Case No. 49 of 2008 in which final report was submitted that the dispute was civil in nature leading to the institution of the present Protest- Cum-Complaint Case. The last submission is that none of the provisions of the Indian Penal Code are applicable on the allegations made out in the Protest-Cum-Complaint requiring interference with the order of cognizance. The protest-cum-complaint case was instigated by Nagarmal Goenka, brother of petitioner no. 1 and father-in-law of the opposite party who was also a prosecution witness in the Complaint case. Learned counsel for the Opposite Party No. 2 submitted that the civil proceedings were a different matter and the allegations presently made in the Protest-Cum- Complaint Case constituted an offence by itself when after enquiry the Court upon its satisfaction had taken cognizance. The pendency of a civil dispute does not detract from the criminality of the allegations made in the Protest- Cum-Complaint Case. As per the allegations, the Opposite Party No. 2 was living in the same house with the petitioners. She was allegedly prevented from entering her own room and abused. The petitioners allegedly entered her room in the same house in which they were residing also and again 3 abused her. Section 448 provides for punishment of house trespass. The offence of house trespass is defined in Section 442, when a person enters into or remains in a building or a human dwelling. It, therefore, obviously refers to an entry by one by use of force and unlawfully into a place where he himself was not authorized to enter but does so by use of force. On the face of the present allegations in the complaint case without anything further more into it to be read, the opposite party no. 2, herself expressly acknowledges that the petitioners are residing in the same house. If they are residing in the same house, the occupants of a common family living in one building naturally have access to one or the other part of the house. In such a situation the question of a family member trespassing in his own house simply does not arise. It is apparent from the facts, not in dispute between the parties, that there is a partition suit pending between them in respect of the properties. Till such time that the partition suit is not decided and shares apportioned the question of house trespass by entering into a room, the share of which is not defined in one common building cannot constitute house trespass. Section 341 provides for punishment for wrongful restraint which is defined in Section 339 as a voluntary obstruction to prevent a person for proceeding in a direction 4 on which the person had a right to proceed. The Opposite Party No. 2, herself acknowledges she was allowed to enter her own room but abused when she alleges that the petitioners entered her room again abused her and indulged in threatening. To this Court, the allegations that she was initially prevented from entering into her room does not amount to an act of wrongful restraint. It is not her case that she was temporarily restrained or confined from movement. To prevent entry does not amount to confinement. The proceedings under Section 107 of the Cr. P.C. are also being contested by them for what are essentially occurrence between the four walls inside the house as per the allegation themselves. In so far as the allegations under Section 323 of the Penal Code are concerned, there is no allegation of any bodily pain disease or infirmity caused under Section 319 of the Penal Code. All that is stated is generally that she was assaulted. What was the nature of the assault and what repercussion it had on her body or psyche has not been stated. The allegation under Section 379 of the Penal Code is ornamental in nature. In Paragraphs 9 and 10 of the complaint it does even state the make of the watch which the complainant or her son were wearing. This Court is satisfied in the facts and circumstances of the case that 5 the allegations with regard to a sum of Rs. 1500/- allegedly snatched from her purse are also ornamental in nature as it does not disclose the denomination of the notes, factors which cannot be considered insignificant in the entirety of the background of the case. In the aforesaid background, this Court now takes upon to consider the submission of the final report of the police case that the dispute between the parties was civil in nature. Undoubtedly, when a Court takes cognizance on a complaint case, it is not required to right a detailed order disclosing its satisfaction based on the enquiry held as to the reasons why it was persuaded to take cognizance. But when there is police report to the contrary, made after investigation directed by the Court, that the allegations were not true when a Protest-Cum-Complaint Case follows on a same allegation dissatisfied with the police report, the duty of the Magistrate does not remain the same as it was if it had been an original complaint simpliciter. Even at this stage, the Magistrate is not required to right a detailed order as to why he was persuaded to take cognizance on the Protest-Cum-Complaint Case, as that is well within his jurisdiction. But surely, fairness of procedure applies to Court proceedings also. An order taking cognizance is a serious matter as it affects of the liberty of a citizen who may also to then seek bail apart from facing criminal 6 prosecution. Therefore, if the petitioners had a police report in their favour, the Magistrate being fully justified in differing with the same in the Protest-Cum-Complaint Case is nonetheless required to indicate reasons that passed his mind on what itself was available in the police investigation and that led before him in the Protest-Cum-Complaint Case of factors overlooked or suppressed by the police to satisfy himself of the justification to take cognizance. The order of cognizance in the present case appears to be mechanical in nature as it simply states what was the allegation in the Protest-Cum-Complaint Case and then proceeds to take cognizance. It does not even notice that earlier a complaint case had been lodged sent for investigation to the police and final report submitted that the dispute was civil in nature. This Court is therefore, satisfied that the order of cognizance is absolutely mechanical in nature done in routine course without proper application of mind to the facts and circumstances of the case and the entirety of the materials available on record. Learned counsel for the Opposite Party No. 2 has very fairly admitted that two title suits have been filed with regard to the properties in question where she claims to reside by the brother of petitioner no. 1, her uncle-in-law. The fact that there is a probate case pending with regard to the property is also not denied. Learned counsel for the 7 Opposite Party No. 2 submits that in view of the pendency of the title suits proceedings in the probate case had been stayed. The remedies of opposite party no. 2 are different in that context under the Civil Laws of the land. It is also an admitted position that subsequently the opposite party no. 2 has also filed a partition suit No. 81 of 2009 claiming to the properties in question which are also the subject matter of the Protest-Cum-Complaint Case. In the entirety of the facts and circumstances of this case, this Court is satisfied what is essentially a civil dispute between the parties with regard to properties is sought to be given the camouflage of a criminal prosecution obviously with the intention to bring pressure under threat of warrants of arrest etc. so as to gain an advantage in the civil proceeding. This Court is therefore satisfied that to permit the present prosecution in Complaint Case No. 723 of 2008 to continue shall clearly be an abuse of the process of Court. The entire proceedings in Protest-Cum-Complaint Case No. 723 of 2008 pending before the Judicial Magistrate, Ist Class, Patna City against the petitioners are therefore quashed. The application stands allowed. P. Kumar (Navin Sinha, J.)