Criminal Miscellaneous No.31240 OF 1999 ----- In the matter of an application under section 482 of the Code of Criminal Procedure. ------ BIRENDRA SINGH @ BIRENDRA KUMAR son of Ram Briksh Singh, resident of Jai Prakash Nagar, Karma Road, Aurangabad, P.S.-Aurangabad, District-Aurangabad …… …….Petitioner Versus 1.STATE OF BIHAR 2.Phulmaniya Devi W/o Dhananjay Das resident of village-Kama Bigha, P.S. & Dist.-Aurangabad …… …..Opp. Parties ------ For the petitioner: Mr. Nachiketa Jha For Opp.Party No.2: Mr.Krishna Kant Tiwari For the State: Mrs. Indu Bala Pandey, APP ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------- Rakesh Kumar,J. The sole petitioner, while exercising inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 21.7.1999 passed by Shri R.Asthana, Judicial Magistrate-1st Class, Aurangabad. By the said order the learned Magistrate has taken cognizance for the offences under sections 364 and 504 of the Indian Penal Code in Complaint Case No.244 of 1999 (T.R. No.757 of 1999). Short fact of the case is that opposite party no.2 filed a complaint vide Complaint Case No.244 of 1999 in the court of Chief Judicial Magistrate, Aurangabad disclosing therein that her husband was a driver of one Shri Shankar Singh brother of the petitioner and on 7.1.1999 she got an information that brother of Shri Shankar Singh, namely, Birendra Singh (petitioner) had taken 2 her husband to Dhanbad from Aurangabad. He was likely to return after one week. However, when he did not return, she got the matter enquired and finally on 14.4.1999, while the informant again went to the house of Shri Shankar Singh with a view to get information regarding her husband, she noticed that Birendra Singh was there as well as the car was also standing there. When the informant enquired from the petitioner, she was abused by this petitioner. It has further been disclosed that this petitioner while abusing the complainant said that her husband has fled away after committing a theft of rupees three lacs. It was also alleged that she was assaulted. After suspecting that her husband was kidnapped, the opposite party filed a complaint petition. In support of her complaint, three witnesses were examined who supported the complainant’s case and thereafter, by the impugned order dated 21.7.1999, the learned Magistrate took cognizance for the offence as mentioned above. Mr. Nachiketa Jha, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance, submits that the present complaint was filed by the complainant maliciously. Learned counsel for the petitioner, while referring to Annexure-2 to the petition i.e. photo copy of the certified copy of the first information report of Dhanbad P.S. Case No.19 of 1999, submits that on 9.1.1999, the petitioner in relation to some contract work after withdrawing rupees three lacs from a Bank visited the office of National Highway Division No.2 at Dhanbad and left the money in the car, which was given to the husband of 3 the informant. After his return from the office, he noticed that neither the car was there nor the driver was available and, accordingly, on the same day, the petitioner gave his written report before the Officer-in-Charge of Dhanbad Police Station disclosing the fact of theft of rupees three lacs as well as theft of his car. Learned counsel for the petitioner has also referred to Annexure-3 to the petition, which is a report of Sub Inspector of Police of Dhanbad Police Station which was filed in the court of Chief Judicial Magistrate. The report discloses that the car in question was subsequently recovered and seized. Learned counsel for the petitioner further submits that subsequently, the car was handed over to the petitioner by the order of the court. He has forcefully argued that falsity of the complaint case is further evident from the fact that the complainant had purposely given the date of first occurrence as 7.1.1999 while the petitioner had already filed first information report against her husband on 9.1.1999, the complaint petition was filed after four months from the date of commission of first occurrence as alleged by the complainant. He has also referred to Annexure-5 to the petition which is a photo copy of the application filed in a case pending before the court of Shri R.D. Paswan, Judicial Magistrate, 1st Class, Aurangabad, which was registered for the offence under Section 366 of the Indian Penal Code. He submits that in the said case, a petition was filed on behalf of husband of the informant, who was an accused in the case that for some reason, he has gone out of station. Accordingly, he submits that in a calculative way, the husband of the petitioner 4 himself disappeared with a view to protect him from the accusation in Dhanbad P.S. Case No.19 of 1999. Mr. Nachiketa Jha, learned counsel for the petitioner has also referred to Annexure-4 to the petition, which is photo copy of the charge sheet, submitted by Dhanbad police in Dhanbad P.S. Case No.19 of 1999. He further submits that while submitting charge sheet, which was submitted in the month of June, 1999, the husband of the informant was shown absconder. In some and substance, learned counsel for the petitioner has argued that the complaint petition was maliciously filed and on this ground alone, the order of cognizance as well as all subsequent proceedings in Complaint Case No.244 of 1999(T.R. No.757 of 1999 is required to be set aside. Learned counsel for opposite party no.2 has opposed the prayer of the petitioner. He submits that after the occurrence as alleged in the complaint, the husband of the informant has not been traced out till today. Mrs. Indu Bala Pandey, learned A.P.P. appearing on behalf of the State submits that at the stage of cognizance, this Court may not examine all the materials which have been referred to by the learned counsel for the petitioner. She submits that this is the defence of the petitioner and such plea can be taken at the stage of defence. She further submits that it is not advisable for this court to examine such materials that too, while exercising power under Section 482 of the Code of Criminal Procedure, which is to be exercised in exceptional and rarest of the rare cases. 5 Besides, hearing learned counsel for the parties, I have also examined the materials available on the record as well as the impugned order. On perusal of the complaint petition as well as order of cognizance, I do not find any defect in the order of cognizance. So far as the plea taken by the learned counsel for the petitioner that the present petition was filed maliciously is concerned, I am of the view that this is not a stage to examine such plea. Those things can be appreciated by the court concerned at the appropriate stage. I am of the view that the petitioner has not made out a case to be an exceptional one warranting this court to exercise its inherent power, at this stage. I do not find any merit in this case and the petition stands rejected. In this case while issuing notice to opposite party no.2 on 3.3.2000, this court had directed that meanwhile further proceeding in the court below shall remain stayed. Subsequently, this petition was admitted on 11.2.2002 and, while admitting, it was directed that during the pendency of this application, interim order dated 3.3.2000 shall remain operative. In view of rejection of this petition, the interim order of stay granted on 3.3.2000 stands automatically vacated. Let a copy of this order be sent to the court below forthwith. Patna High Court The 5th May, 2010 NAFR/Md.S. ( Rakesh Kumar, J.)