CRIMINAL MISCELLANEOUS No.32161 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------ 1. Pradeep Singh, Son of Dund Bahadur Singh 2. Pushpendra Singh, Son of Sri Pradeep Singh Both residents of Village-Mahabalipur, P.S. Dulhin Bazar, District-Patna ------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Bhikhari Singh, Son of Late Rajal Singh, resident of Village- Mahabalipur , P.S. Dulhin Bazar, District-Patna, at present residing at North Sri Krishnapuri, Sardar Patel Path, Patna-13, P.S. Sri Krishnapuri, District-Patna -----------Opp.Parties. ---------------- For the petitioners: Dr. Uma Shankar Prasad, Sr. Advocate S/Sri Lal Babu Keshri & Kamla Kant Tiwary, Advocates For the State: Sri Murlidhar, A.P.P. ----------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. On 17.5.2010, this case was adjourned to enable the learned counsel for the petitioners to file a supplementary affidavit enclosing therewith ordersheet from 29.3.1998 to 1st March, 2000 of Complaint Case No.1117C of 1997. The Court wanted to know as to what happened in between the date of order of cognizance i.e. 27.3.1998 and the date of order of stay by this Court. 2. Sri Uma Shankar Prasad learned Senior Counsel appearing on behalf of the petitioners submits that despite best efforts, he could not get any instruction on the point. However, it was informed that nothing has happened in the case after the date of order of cognizance. Accordingly, in view of the stand taken by the learned Senior Counsel, there is no need to insist for filing supplementary affidavit. 2 3. 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 27.3.1998 passed by Sri B.K.Tiwari, Judicial Magistrate,1st Class,Patna in Complaint Case No.1117( C) of 1997. By the said order, the learned Magistrate has taken cognizance of offences under Sections 420 and 406 of the Indian Penal Code. 4. Short fact of the case is that Opp.Party no.2 , who was none else but own brother-in-law of petitioner no.1, filed a complaint petition vide Complaint Case No.1117 ( C) of 1997 in the court of the learned Chief Judicial Magistrate,Patna alleging therein that both the petitioners persuaded the complainant to invest some money in the business of fish and on persuasion of the accused petitioners, the complainant gave more than Rs. 1 lac to the petitioners with an assurance that after earning money from the fish business , they will returned the amount to the complainant. It was alleged that initially it was agreed that within four months, they will return the money, however after expiry of the period when the complainant approached the petitioners, they again gave false assurance and subsequently, the complainant thought that he was cheated by the petitioners and thereafter, the present complaint was filed. 5. After filing of the complaint petition, the complainant was examined on S.A. and in support of the complaint case, four witnesses were examined as enquiry witnesses. After completing the enquiry the learned Magistrate by the impugned order, i.e. the order dated 27.3.1998 took cognizance of the offences under Sections 420 and 406 of the Indian Penal Code and directed for issuance of processes against the petitioners. 3 6. Aggrieved with the order of cognizance, the petitioners approached this Court by filing the present petition and on 2.3.2000, this petition was admitted. While admitting, this Court had directed that pending disposal of this application, further proceedings in Complaint Case No.1117( C) of 1997 pending in the court of Sri B.K.Tiwari, Judicial Magistrate, 1st Class, Patna so far petitioners are concerned shall remain stayed and till date order of stay is continuing. From the record, it appears that despite valid service of notice, Opp.Party no.2 has not preferred to appear in this case. 7. Sri Uma Shankar Prasad, learned Senior Counsel appearing on behalf of the petitioners, while challenging the order of cognizance submits that on perusal of the contents of the complaint petition, it is evident that no criminal offence is made out. It was submitted that it can be treated hardly as a dispute of the civil nature. It was further submitted that petitioner no.1 was husband of the sister of the complainant. However, prior to the filing of the present complaint petition, the grand son of the complainant had attempted to kill petitioner no.1 and for that occurrence an F.I.R. vide Bikram ( Dulhin Bazar) P.S. Case No.45 of 1997 was registered on 5.3.1997 for the offences under Sections 341, 323,337, 452 and 380 of the Indian Penal Code. Accordingly, it was submitted that the present complaint petition was filed by the complainant on 24.9.1997. It was argued that the present complaint was a counter blast to the earlier case, i.e. Bikram ( Dulhin Bazar) P.S. Case No.45 of 1997. Accordingly, it was submitted that the order of cognizance and the entire proceeding in Complaint Case No.1117(C) of 1997 is liable to be set aside on the ground 4 that the same was malicious. 8. In this Case Sri Murlidhar learned Addl.Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioners. It has already been indicated above that despite valid service of notice, Opp.Party no.2 has not appeared. 9. Besides hearing learned Senior Counsel for the petitioner and the learned Addl.Public Prosecutor, I have also perused the materials available on record. On perusal of the complaint petition, prima facie the Court is satisfied that for such allegation, criminal proceeding was unwarranted. Moreover, it is clear that prior to the filing of the present complaint petition , a case vide Bikram ( Dulhin Bazar) P.S. Case No.45 of 1997 was got registered as per the instance of the petitioners side against grand son of the complainant relating to offences under Sections 341,323,337, 452 and 380 of the Indian Penal Code. Moreover after the order of cognizance, same was stayed by the Court on 2.3.2000 and stay continued for such a long time. 10. In view of the facts and circumstances of the present case, the Court is satisfied that the complaint petition was not filed fairly and honestly, but the same was filed with some oblique motive. Moreover, there is no sufficient material in the complaint for proceeding with the said case particularly in view of the fact that in the present case alleged occurrence had taken place long back in the year 1997 and no progress could take place in the case. 11. Accordingly, I am satisfied that this is a fit case for exercising inherent jurisdiction in favour of the petitioners and, as such, the 5 order of cognizance dated 27.3.1998 is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 15th July,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J)