IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3628 of 2009 Gajendra Prasad Singh, S/o Subhash Singh, resident of Mohalla- New Colony, Balughat, P.S. and Town, District- Muzaffarpur. ………………………………..Petitioner. Versus 1. The State of Bihar. 2. Sunaina Devi, W/o Shatrughan Pandey, resident of Mohalla- Satsang Bihar, Amgola, P.S. Kazimohammadpur, District-Muzaffarpur. ……Opposite Parties. For the petitioner :- Mr. Sanjay Kumar @ S.K., Advocate. For the State :- Mr. Amarendra Prasad, A.P.P. ----------- 3 10. 01. 2011. Heard. This criminal miscellaneous petition has been filed for quashing the order dated 03. 01. 2009 passed in Trial No. 1690/09 arising out of Complaint Case No. 2390/07 by which learned Judicial Magistrate Ist Class has taken cognizance for offences under Sections 323, 379, 448 and 504 of the Indian Penal Code. 2. The prosecution case as alleged in the complaint petition that the husband of the complainant is in service of a Guard in Satsang, Bihar, Ashram for Takur Anukul Chandra and the petitioner as a Joint Secretary of the said Ashram vexed the husband of the complainant and stop payment of Rs. 300/- per months which used to be paid by Deoghar Central Office of the Ashram compelling the guard to work on Rs. 400/- per month paid by the local office of the Ashram. It is further alleged that about three months back accused 2 no. 1 and 2 broken the house which the complainant live in the guest house. It is further alleged on 18. 09. 2007, Gajendra Prasad Singh and Manoj Singh entered into the house of the complainant and assaulted and destroying articles and at the instigation of the Gajendra Prasad Singh. In the complaint petition, the complainant was examined on S.A. and witnesses were also examined and after considering the statement of the complainant and witnesses, cognizance has been taken. 3. Learned counsel for the petitioner, however, contends that in the complaint petition, there is specific mentioned that this petitioner has stopped payment of Rs. 300/- per month from the Central Office of the Ashram and further direction that the room in which the complainant was residing to throw out of the Ashram. It has further been contended that the petitioner being a Joint Secretary of the Ashram in pursuance of the meeting with the Chairmanship of one Kamdeo Prasad Srivastava discharged the complainant and her husband in pursuance of which letter was issued on 02. 09. 2007 under signature of the Chairman of Kamdeo Prasad Singh and Ganendra Prasad Singh dismissing them from the house of the Ashram. It is contends that petitioner has falsely been 3 implicated in the case for the above reasons as well as false allegation made on 18. 09. 2007. 4. Learned counsel for the petitioner further submitted that he has mentioned in the criminal petition that various exercise by this petition for vacating the premises of the Ashram and for which even proceeding under Section 107 Cr.P.C. even a criminal case has been lodged by this Gajendra Prasad Singh against this complainant. However, the said case has been lodged bearing Kazimohammadpur P.S. Case No. 89/08 and 198/08 dated 27. 05. 2008 as well as contends that petitioner has falsely been implicated. 5. Learned counsel for the State however, opposed that at this stage quashing whatever allegation made by the complainant and defence of the accused person is not required to be taken into consideration for quashing, it will require to see at the stage of trial. 6. However, having regard to the respective submissions, question for consideration as to whether case has been lodged with malicious intention to wreck vengeance. 7. However, having regard to the allegation, taking into consideration on the face value of the complaint, it makes out an offence and there is direct allegation of assault and theft and the witnesses of the 4 complainant petition were was examined supported the prosecution version in the complainant of assault and hence under the facts and circumstances whatever allegation made makes out an offences and witnesses have supported the complaint. However, the ground for quashing that informant has been falsely implicated on ground that service of the husband of complainant is terminated and room in which complainant was living is demolished. 8. However, having regard to the fact that allegation made in the complaint makes out a case and witnesses have supported the prosecution then case may not quashed at this stage merely for malice on the ground mentioned as defence of the accused that can only be tested at the stage of trial and in such circumstance malice becomes secondary to be decided as question of fact during trial. 9. Hence, having regard to the facts and circumstances, since offence is made out and witnesses have supported the prosecution case so the case cannot be rejected on meticulous consideration of defence making out a case for malice. Hence, I do not find any merit to quash the petition and the petition is hereby dismissed. m.p. ( Gopal Prasad, J.) 5