Criminal Miscellaneous No.7710 OF 1999 ------ In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ------- 1. SANJEEV RANJAN S/O SHIV SHANKAR PRASAD, RESIDENT OF “SRISTI” ROAD NO.23, S.K. NAGAR, P.O. AND P.S. BUDDHA COLONY, PATNA. 2. SHIV SHANKAR PRASAD S/O LATE R.C. PRASAD, RESIDENT OF “SRISTI”, ROAD NO.23, S.K. NAGAR, P.O. AND P.S. BUDDHA COLONY, PATNA. 3. SHEELA MAHTHA, W/O SHIV SHANKAR PRASAD, RESIDENTOF “SRISTI” ROAD NO.23, S.K. NAGAR, P.O. AND P.S. BUDDHA COLONY, PATNA. … … PETITIONERS. VERSUS 1. THE STATE OF BIHAR 2. ASHOK KUMAR S/O LATE KAMESHWAR KUMAR, C/O CHANDESHWAR SHARMA DIWAN MOHALLAH, KHANGAR GALI, SARVODAYA COLONY, P.S.- KHAJEKALAN, PATNA-8. …. .… OPPOSITE PARTIES. ------ For the petitioners: Mr.Binay Kumar Pandey For the State: Mr.Damodar Prasad Tiwary, APP ------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------ Rakesh Kumar,J. Initially, the present petition was filed on behalf of three petitioners, namely, Sanjeev Ranjan, Shiv Shankar Prasad and Sheela Mahtha. On 30.4.1999, while the petition was taken up for hearing under the heading for admission, learned counsel appearing on behalf of the petitioners sought permission of the court to confine his petition only in respect of petitioner nos.2 and 3. Prayer of the petitioners was allowed. Accordingly, vide order dated 30.4.1999 the present petition in relation to petitioner no.1 was dismissed as withdrawn. 2. While issuing notice to opposite party no.2 vide order dated 30.4.1999, this Court had directed that till any order is passed in the admission matter, further proceeding in the court below, so far as 2 petitioners are concerned, shall remain stayed. Subsequently on 30.7.1999 the case was admitted for hearing and interim order of stay was directed to continue. 3. In this case, no one has come forward on behalf of opposite party no.2. 4. The short fact of the case is that the complainant alleged in the Complaint Case No.329 of 1998 that he was appointed as a Distributor for storing, despatching and selling Vizla House appliance manufactured by Oswal Industries, New Delhi. The complainant was appointed as a Distributor by M/S AGILE Marketing (P) Ltd. which is a Company registered under the Companies Act. It was alleged that the petitioner no.1 and one another were Directors of the Company. In course of transaction of business, it was alleged that some amount had become due with the Company M/S AGILE Marketing (P) Ltd. and thereafter, cheques were issued on behalf of Company in favour of the complainant for a total amount of Rs.3,70,000/-. It was further alleged that when the complainant presented the cheque in the Bank, the same was not honoured and thereafter, he repeatedly approached the accused persons and on one occasion, the complainant was assaulted and in the said occurrence, it was alleged by the complainant that the petitioner no.1 snatched a wrist watch value of which was Rs.4,000/- and another Director, who was made accused no.2 snatched Rs.2,500/- from the complainant. On these allegations, the complaint petition was filed and finally by order dated 8.7.1998, Shri Ranjan Kumar, Judicial Magistrate, 1st Class, Patna City took cognizance of the offence under Sections 406, 420, 3 467, 468, 469, 471, 120B, 379, 323/34 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act. So far as petitioner nos.2 and 3 i.e. Shiv Shankar Prasad and Sheela Mahtha are concerned, it was disclosed that they were Advisors of the Company in question. 5. From perusal of the complaint petition as well as materials available on the record save and except the assertion in the complaint petition that the petitioner nos.2 and 3 were Advisors to the Company in question and no allegation has been levelled by the complainant against them. 6. Shri Binay Kumar Pandey, learned counsel appearing on behalf of the petitioner nos.2 and 3, while challenging the order of cognizance, submits that neither at the time of filing of the complainant petition nor at the time of recording the statement of complainant on S.A. any chit of paper was produced before the Magistrate to show that these two petitioners were Advisors of the Company. He submits that only with a view to harass the entire family members of Sanjeev Ranjan, who was petitioner no.1, the complainant had made such assertion in the complaint petition. The petitioner nos.2 and 3 are father and mother respectively of Sanjeev Ranjan, who is petitioner no.1 in the present case and whose case had already been withdrawn. He submits that in absence of any specific allegation against these two petitioners, the learned Magistrate had committed error in taking cognizance of the offence even against these two petitioners. He submits that for the ends of justice, it is necessary for this Court to exercise its inherent jurisdiction under Section 482 of the 4 Code of Criminal Procedure. He further submits that in view of non- availability of any allegation against these two petitioners for commission of any offence, the order of cognizance in respect of these two petitioners is liable to be set aside. 7. Shri Damodar Prasad Tiwari, learned counsel appearing on behalf of the State has opposed the prayer of the petitioners merely on the ground that at this initial stage, this Court may not interfere in the matter. 8. I have examined the materials available on record and I have minutely gone through the complaint petition which has been annexed as Annexure-1 to this petition. From the complaint petition, it appears that only assertion has been made that petitioner nos.2 and 3 were Advisors to the Company in question. If, for the time being it is assumed that Director of the Company in question has committed offence, for the act committed by the Director of the Company, the Advisor cannot be held responsible for commission of alleged offence, particularly in view of absence of any specific allegation against these two petitioners in the complaint case. Merely because of the fact that these two petitioners are father and mother of the Director of the Company, they cannot be allowed to be prosecuted in such a proceeding. 9. In view of the facts and circumstances and in view of the materials available on the record, I am of the view that allowing prosecution against the petitioner nos.2 and 3, in the circumstances of the present case, will amount to allowing an abuse of the process of the court. 5 10. Accordingly, with a view to prevent the abuse of the process of the court, it is necessary for this Court to exercise its inherent jurisdiction in the present matter and, as such, I hereby set aside the order of cognizance dated 8.7.1998 passed in Complaint Case No.329 of 1998 by Shri Ranjan Kumar, Judicial Magistrate, 1st Class, Patna City, so far it relates to petitioner nos.2 and 3. 11. Accordingly, the petition stands allowed. It is made clear that petition in respect of petitioner no.1 had already been dismissed as withdrawn by order dated 30.4.1999. Patna High Court The 9th April, 2010 NAFR/Md.S. ( Rakesh Kumar, J.)