CRIMINAL MISCELLANEOUS No.10356 OF 2001 In the matter of an application under Section 482 of the Code of Criminal Procedure ---------- 1. SANJAY KUMAR , Son of Rama Nand Thakur , Assistant Administrative Officer, resident of Village and P.O.Katakosh, District-Katihar 2. Shri Bibhuti Bhushan Choudhary, A.A.O. Incharge, Son of Late Binay Bhushan Choudhary, Incharge Pearless Branch, Bhagalpur. Versus 1. THE STATE OF BIHAR 2. Raghubir Rajak S/O Late Maso Rajak, resident of Village- Aama Ratanpur, P.S. Bath ( Sultanganj), District-Bhagalpur ------ For the petitioners: S/Sri B.P.Pandey, Sr. Advocate, S.C.Giri & P.K.Sinha, Advocates For the State : Smt. Indu Bala Pandey, A.P.P. -------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 6.12.2000 passed by Sri S.P.Mishra, Judicial Magistrate, Bhagalpur in Complaint Case No.199 of 2000. By the said order, the learned Magistrate has taken cognizance of offences under Sections 420 and 504 of the Indian Penal Code and summoned the accused persons including both the petitioners. 2. Short fact of the case is that Opp.Party no.2 filed a complaint in the court of learned Chief Judicial Magistrate, Bhagalpur, which was numbered as Complaint Case No.199 of 2000. It was alleged in the complaint petition that accused no.2, namely, 2 Nilesh Kumar @ Kumar ( not before this Court )claiming to be agent of Pearless General Finance and Investment Company Ltd.(hereinafter referred to as “ the Pearless Company”) had persuaded the complainant to make some deposit under the Scheme of the Pearless Company . Accordingly, on 25.2.1993, the complainant agreed to open an account, for which a certificate to that extent vide Certificate No.0927876/317 was granted. From time to time, the complainant deposited total amount of Rs.5000/-. It was alleged that accused Nilesh Kumar kept the Pass-Book with him. The accused Nilesh Kumar further persuaded the complainant to make further deposit and, as such, the complainant deposited Rs.50,000/- and accordingly total amount of Rs.64,750/- was deposited by the complainant . It was alleged, the entire amount was cheated by accused Nilesh Kumar in connivance with the Officers of the Peerless. In the complaint petition, the complainant had named accused no.2 as Nilesh Kumar @ Kumar. However, in the column of accused Nos. 1, 3 and 4 only designations were mentioned by the complainant. After filing of the complaint petition, the complainant produced certain witnesses in support of his case and thereafter the learned Magistrate by the impugned order has taken cognizance of offences and directed for summoning the accused persons. 3. Aggrieved with the order of cognizance dated 6.12.2000, two petitioners, who were Assistant Administrative Officer and A.A.O. Incharge respectively, approached this Court by filing the present petition. On 12.12.2001, while issuing notice to Opp.Party 3 no.2, this Court directed that till the next date of hearing, further proceedings in Complaint Case No.199 of 2000 pending in the court of Shri S.P.Mishra, Judicial Magistrate shall remain stayed. On 4.10.2002, the petition was admitted for hearing, lower court record was called for and it was directed that the order of stay passed on 12.12.2001 shall continue. The order of stay is still continuing. 4. Despite the fact that Opp.Party no.2 has entered his appearance through his Advocate, none has appeared on his behalf. On 17.08.2010, while the matter was being heard and learned counsel for the petitioners was present, the case was adjourned on the ground of non- appearance of learned counsel for Opp.Party no.2. Today again, on call none has appeared on behalf of Opp.Party no.2. 5. Sri B.P.Pandey, learned Senior Counsel appearing on behalf of the petitioners has argued that even in the entire complaint petition, there is no assertion of commission of offence against the petitioners. It was further submitted that petitioners were not made accused by their names, but only by way of referring designation they have been made accused. It was submitted that since petitioners were posted at Bhagalpur in Pearless Company they had been made accused in the present case. It was submitted that in the complaint petition, entire allegation has been made against accused Nilesh Kumar, who purported to be agent of the Pearless Company had collected money from the complainant. Even during the enquiry, none of the witnesses had disclosed the name of both the petitioners nor any specified allegation has been made against the petitioners. It was submitted that 4 in absence of any allegation against the petitioners allowing prosecution against the petitioners shall amount to allowing abuse of the process of the Court and, as such, it has been prayed to set aside the order of cognizance so far as petitioners are concerned. 6. Smt. Indu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioners. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on the record, particularly the complaint petition. From the contents of complaint petition, it is evident that whatever allegation has been made has been made only against accused Nilesh Kumar who was arrayed as accused no.2 in the complaint petition. It appears from the complaint petition that only designation of officers of Pearless Company has been mentioned in the complaint petition. 8. After examining the materials available on record, particularly the complaint petition, the Court is of the opinion that there is nothing against both the petitioners to proceed with the case against them. In that view of the matter, the Court is of the opinion that summoning the petitioners in the present case on the basis of the impugned order is liable to be set aside. 9. Accordingly, the order of cognizance dated 6.12.2000 passed by Sri S.P.Mishra, Judicial Magistrate, Bhagalpur and entire proceeding in Complaint Case No.199 of 2000 so far as it relates to the petitioners is hereby quashed and the petition stands allowed. 5 10. Since, in this case lower court record was called for and received, Office is directed to remit back the lower court record forthwith. Patna High Court,Patna Dated : the 14th September,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)