IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45388 of 2007 ATMA PRASAD Versus THE STATE OF BIHAR & ANR. ----------- 2/ 27.01.2009 Heard learned counsel for the petitioner, learned counsel for the State and the learned counsel on behalf of Opposite Party no.2, who has entered appearance suo moto. The petitioner seeks quashing of the order of cognizance dated 16.01.2006 by the Judicial Magistrate, Ist Class, Siwan in Complaint Case no. C1543/2006 corresponding to Trial no. 2560/2007 under Section 365 of I.P.C. summoning the petitioner to face trial. Learned counsel submits that the complainant initially lodged an F.I.R. on 31.08.2004 stating that on 29.08.2004 at about 6.30 pm. he was sitting at his door with his father, Sahdev Prasad. The petitioner along with Sakal Mahato and Madan Mahato came at his door and asked for a settlement by the Panchayat of the land-dispute between them and for which criminal and civil litigations were going on between the parties. The informant told his father not to go, when the petitioner and other accused exhorted the father to accompany them saying that he was an old man and that they would accept whatever settlement he would suggest 2 as amongst them. His father left with them. When he did not return home, the F.I.R. was lodged. When the informant enquired from the petitioner and the co-accused, they were not able to say anything with regard to his father. The three F.I.R. witnesses, co-villagers, would also throw light upon the same. The Police investigated the matter and submitted a final report that the allegations were false. Final form not charge-sheeting the accused was submitted on 18.03.2006. On 22.07.2006, the Court heard both sides on the final form submitted by the Police and the protest petition. Hearing was again held on 26.07.2006 of the parties on the final form. After hearing the informant in accordance with the Code of Criminal Procedure the final report came to be accepted whereafter the matter proceeded on a protest petition. The protest petition was filed on 7.10.2004. Investigation by the Police was pending and no report had been submitted. The father of the informant, the alleged victim, gave a statement in Court under Section 164 Cr. P.C. in the Police Case dated 16.02.2006. He specifically stated of the land dispute between the parties, the panchayati held and went on to say that none kidnapped him, rather he on his own, disgusted with this dispute and litigation walked away and in course of traveling from one place to another, he finally 3 reached Nepal. When he returned back he learnt that his son had filed a case of abduction. He specifically stated that none had abducted him. Learned counsel for the informant, opposing the application submitted that the statement under Section 164 Cr. P.C. of his father was obtained under coercion. That the informant had filed an application before the Court below on 20.02.2006 of the statement under Section 164 Cr. P.C. having been obtained under coercion. However, it was very fairly conceded that the alleged victim had not protested till date of his statement under Section 164 Cr. P.C. having been obtained by coercion in the Court of law. The informant in the Protest-cum-Complaint has specifically admitted a serious land dispute with the petitioner and other accused and for which criminal and civil litigations were pending between them and that efforts had been made in a Panchayati to settle the matter for which his father had gone. In the protest petition, he states that the prosecution case is real and genuine with regard to the kidnapping of his father. That the informant and prosecution witnesses are ready to support the prosecution case. The Investigating Officer has gone into collusion and has been bribed. That the accused were openly talking of having bribed the Investigating Officer. That justice shall 4 be a casualty. The final report submitted by the Police on 18.03.2006 came to be accepted on 7.08.2006 after hearing the informant also under the Code of Criminal Procedure. The date of the statement under Section 164 Cr. P.C., i.e. 16.02.2006 therefore has its own importance as the enquiry in the Protest-cum-Complaint case commenced thereafter. Learned counsel for informant submits that the alleged victim has also deposed during the enquiry on the Protest-cum-Complaint case and has placed before this Court a typed copy of his deposition dated 12.12.2006. In his deposition during enquiry, he supports the allegations of abduction but in his answer to the Court question he acknowledges the truthfulness and validity of his statement under Section 164 Cr. P.C. made on 16.02.2006 and does not even make a whisper of a suggestion of the same having been obtained by coercion or undue influence. Setting the Criminal Law in motion is a serious matter. It not only invites an onerous burden on the person made an accused but castes an onerous burden on the entire system of litigation, including the Courts as also the whole machinery for dispensation of justice. A person cannot set the Criminal law into motion and then 5 start a process of meandering like a river in spate changing his statement at his will, and sometimes denying and later seeking to support the allegation, while at the latter stage he chooses to remain silent about his own statements at the former stage. In the facts and circumstances of the case, a land dispute between the parties with criminal and civil litigations between them is an admitted fact. The final report submitted by the Police not charge-sheeting the accused was accepted after hearing the informant. The Court was not persuaded to differ with the Police report and take cognizance. The Court was fully competent to do so but was not satisfied from the materials on record to do so. Statement under Section 164 Cr. P.C. is not substantive evidence by itself but can be used to corroborate or confront during trial. Nonetheless this Court finds that in the petition dated 22.02.2006 stated to have been filed by the O.P. no.2 with regard to the statement of his father recorded under Section 164 Cr. P.C. after his alleged abduction for the purpose, no fresh F.I.R./Complaint has been lodged by the O.P. no.2 for such alleged abduction. Insofar as the Protest-cum-Complaint Case is concerned, it again acknowledges the serious land 6 dispute and the various civil and criminal litigations between the parties. The alleged victim of abduction makes a statement under Section 164 Cr. P.C. Having made the statement, he never retracts from it. A statement under Section 164 Cr. P.C. has its own sanctity in law to which a presumption attaches in law of the same having been made voluntarily without coercion. That this is a statement to be appropriately considered during the trial only cannot be seen in isolation from the entirety of the facts and circumstances of the case. This would necessary depend on the facts of each case, especially when power under Section 482 Cr. P.C. are to be exercised. It has been noticed that after having made his statement on 16.02.2006, the alleged victim of abduction, the father of the informant, never filed any petition before the Court below that his statement was obtained under coercion. It was the informant/opposite party no.2, his son, who petitioned the Court below with regard to the same. Presumably for that reason what has been placed before this Court is a petition in that regard stated to have been filed on 20.02.2006, which is neither a certified copy and nor has been put on affidavit, but unsigned as to on whose behalf it has been filed. The plain typed copy of the deposition of the alleged victim during enquiry in the Protest-cum-Complaint case has been 7 placed before this Court. It has already been discussed above that at paragraph-5 of the same, the alleged victim stood by his statement under Section 164 Cr. P.C. and did not question the same. He does not even make a whisper of a suggestion as observed above of the same having been obtained by coercion or undue influence. This Court is not satisfied in the facts and circumstances of the present case to reject this application under Section 482 Cr. P.C. on the premises that the validity of Section 164 Cr. P.C. statement of the victim can adequately be considered in trial. This is for the simple reason that the alleged victim of abduction around whom the entire fulcrum of the criminal trial revolves is not standing by the allegations of abduction. No useful purpose is going to be served by subjecting the petitioner to the rigours of criminal trial. The Court arrives at this conclusion in the background of the admitted facts of a land dispute between the parties with several civil and criminal litigations between them. This Court is satisfied that the game of one up-manship in a land dispute between the parties, the Criminal Courts have been turned into the play ground. Let the photo copy of the petition dated 20.02.2006 and the typed copy of the deposition dated 12.12.2006 be kept on record. 8 This Court in the entirety of the facts and circumstances of the case is satisfied that to allow the Protest-cum-Complaint Case no. 1243/2006 to continue shall clearly be an abuse of the process of Court. The order of cognizance dated 16.01.2006 and the entire proceedings in the Complaint Case are, accordingly, quashed. The application stands allowed. S.B.P. (Navin Sinha, J.)