IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16616 of 2000 NIRBHAY MISHRA Versus STATE OF BIHAR & ANR with Cr.Misc. No.24121 of 2000 RAM PRATAP SINGH Versus STATE OF BIHAR & ANR ----------- 3. 24.6.2010. Heard Sri Vishwanath Pd. Sinha, learned senior counsel for petitioner Nirbhay Mishra, Sri Dhirendra Nath Jha, learned counsel for petitioner Ram Pratap Singh. The petitioners have filed the petitions seeking quashing of the orders summoning them to stand trial in Complaint Case No.361 of 2000, which order of summoning was passed on 6.5.2000 by the Magistrate, who had been made over the complaint petition under Section 192 of the Cr.P.C. Some of the facts which are not denied by the petitioners and which are alleged against them are that the petitioner Nirbhay Mishra was acting as the Commandant of Homeguard, Darbhanga and he was also holding additional charges of the office of his counter part in Madhubani. The other petitioner Ram Pratap Singh had been deputed as a Company Commander in the establishment of Homeguard, Madhubani. - 2 - The allegation is that Rs.735/- was to be paid to about three thousand homeguards towards a stipend due to doing election duty in the year, 2000 and Rs.30/- per homeguard per day was to be paid to as many number of homeguards as allowances for their meals. However, the two petitioners in connivance and conspiracy paid only Rs.700/- against Rs.735/-. It was alleged that Rs.35/- per homeguard out of Rs.735/- was withheld by the petitioners on the pretext that the amount shall be remitted to the victims of Indo-Pakistan War, 1999 and specially those victims who had suffered in Kargil Sector. This is not denied that the complainant and others had complained to the higher officials of the department and a full-fledged enquiry was also held and the entire allegations were found false and concocted. Inasmuch as the homeguards had duly receipted the payment per head of Rs.735/- and they did not complain about the non-payment of Rs.30/- per day towards their food allowances. It was contended that it was out and out a vexations prosecution launched by some of the vested interests in the establishment of the - 3 - homeguards at Madhubani who were aggrieved by the actions of the two petitioners in running the establishments. It was contended that the whole allegations stemmed from a sense of malice and spiting at the petitioner. It could, as such, be an abuse of the process of the court as also the wastage of public time and money. Sri Jharkhandi Upadhyay, the learned A.P.P. appearing for the state has resisted the prayer on the ground that once the petitioners have preferred the criminal revision before the learned Sessions Judge, there was no locus left for them to prefer the petitions filed by each of them. In Madhu Limaya Vrs. State of Maharashtra AIR 1978 SC 47, the question was discussed in paragraph 10 of the report and it was held that once a revision petition has been filed after an order of summoning, a petition under Section 482 of the Cr.P.C. could not be maintained. However, while summing up the positions of law, the Supreme Court held that still such petitions could be filed in some class of cases if the prosecution appeared vexations, or to settle malice against the - 4 - accused or if there is some legal defect in the prosecution. While delivering the decision in Madhu Limaya, reference was made to the earlier decision of the Supreme Court in R.P.Kapur’s case (AIR 1960 SC 866) so as to pointing out as to what could be the class of cases in which an order of cognizance could be set aside or quashed. After that decision we have quite a long line of decisions like AIR 1992 SC 604 State of Hariyana Vrs. Bhajan Lal in which the conditions have now come to 7 as against 4 which were laid down in R.P.Kapur’s case. In Bhajan Lal, it was held that if the prosecution appears vexations or if it appears that the forum of the court has been utilized for spiting at the accused or to maliciously prosecute him, then in those cases the prosecution must not be allowed to continue. As pointed out at the outset, petitioner Nirbhay Mishra was the Commandant of Bihar Home Guards at Darbhanga and he was holding the charges of the Madhubani office also at the relevant time. Petitioner Ram Pratap - 5 - Singh was holding an administrative position in the hierarchy of the Homeguard. The full-fledged domestic enquiry on the complaints of the complainant and others ended in a report pointing out that there had been nothing as has been alleged by the complainant in the establishment. It appears that it shall be an utter abuse of the process of the court if as higher an officer in the case of the homeguard is sent to trial on such fictitious allegation which was found false in the domestic enquiry by the higher officer of the department. In the result, I quash the proceeding arising out of complaint case no.361 of 2000 which was pending before Sri K.Kumar, Judicial Magistrate, Ist Class, Madhubani and which was, initiated, by order of cognizance dated 6.5.2000 which is hereby quashed. The two petitions are allowed. B.Kr. ( Dharnidhar Jha, J. )