CRIMINAL MISCELLANEOUS No.32313 OF 2007 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. -------- SHEO KUMAR PRASAD son of Sri Ramjee Prasad, Permanent resident of village-Barakhurd, P.S.-Noorsarai, Dist.-Nalanda, present posted as Executive Enginner, (Construction), Eastern Central Railway, Hazaribagh ……. ……..Petitioner Versus 1.STATE OF BIHAR 2.Birendra Kumar Mishra, son of Sri Banka Mishra, resident of Mohalla-Sri Nagar Gobarsahi Chowk, Muzaffarpur, P.S.-Sadar, Dist.-Muzaffarpur ……. ……Opp.Parties --------- For the petitioner: Mr.Anjani Kumar and Mr.Sudhir Kumar Upadhyay For Opp. Party No.2: None For the State: Mrs. Indu Bala Pandey, Addl.P.P. --------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. The sole petitioner, who, at the relevant time, was Assistant Divisional Engineer in East Central Railway, Muzaffarpur, has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 16.3.2007 passed by Shri Vijay Krishna Singh, learned Judicial Magistrate, Ist Class, Muzaffarpur in Complaint Case No.970 of 2006/Tr. No.2617 of 2007. By the said order, learned Magistrate has taken cognizance of offences under Sections 323, 406 and 504 of the Indian Penal Code. 2. Short fact of the case is that the opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Muzaffarpur, which was numbered as Complaint Case No.970 of 2006, disclosing therein that he had come in contact with the 2 petitioner in connection with small work in the Railway. The petitioner, at the relevant time, was Assistant Divisional Engineer and he was also supervising the contract work executed by the Contractors. Since the petitioner was in need of money for construction of a house at Patna, he had requested the complainant to give him some money and, accordingly, the complainant had paid Rs.50,000/- to the petitioner on an undertaking that the said amount will be refunded within a period of six months. Thereafter, he withdrew Rs.59,600/- from his Central Bank A/c, Motijhil, Uma Market Branch and he handed over Rs.50,000/- to the petitioner in presence of witnesses. After expiry of the period of six months, when the petitioner went to demand money, on one pretext or the other, he was not paid. Finally, on 30.5.2006, while complainant, in presence of the witnesses, went to the house of the petitioner and demanded money, he was abused and pushed by the petitioner. Accordingly, it was alleged that by committing fraud, the petitioner had taken Rs.50,000/- from the complainant. After filing the complaint petition, the complainant was examined on solemn affirmation. In support of his complaint, the complainant produced two witnesses and thereafter, the learned Magistrate, after being satisfied that, prima facie, case was made out, has taken cognizance of offences under Sections 323, 406 and 504 of the Indian Penal Code. 3. Aggrieved with the order of cognizance, the petitioner has approached this Court by filing the present petition. On 1.10.2007, while issuing notice to opposite party no.2, this Court directed that in the meantime, further proceedings in 3 Complaint Case No.970 of 2006, Tr.No.2617 of 2007 pending in the court of Shri Vijay Krishna Singh, Judicial Magistrate, Ist Class, Muzaffarpur, shall remain stayed. Thereafter, opposite party no.2 appeared through his advocate and the case was admitted for hearing on 5.10.2009 and it was directed that interim order of stay passed on 1.10.2007 shall continue. On 9.11.2007, while the case was taken up for hearing, none appeared on behalf of opposite party no.2, whereas Shri Anjani Kumar, learned counsel for the petitioner was ready to argue the case. However, the case was adjourned for the day with an indication that if on the next date, no one appears on behalf of opposite party no.2, the case shall be decided after hearing learned counsel for the petitioner in absence of opposite party no.2. Today again, none appeared on behalf of opposite party no.2. 4. Mr. Anjani Kumar, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance, submits that the petitioner was not at all knowing the complainant. However, after filing of the complaint petition, he got the matter enquired and thereafter, he came to know that the complainant was Munshi of one M/S Pappu Construction, Proprietor of which was Sri Hari Shankar Roy. Learned counsel for the petitioner has referred to paragraph-9 of the petition and it was submitted that being Supervising Officer, the petitioner had raised objection to the inferior work executed by M/S Pappu Construction. It was submitted that present complaint was got filed as per the instance of someone else particularly by one Shri Hari Shankar Roy, Proprietor of M/S Pappu Construction. While 4 referring to the statements made in paragraphs 14 and 15 of the petition it was submitted that the petitioner has never constructed any house at Patna in the year 2005 rather the father of the petitioner has got constructed a house at Patna in the year 1999. It was further submitted that the petitioner himself was Assistant Divisional Engineer in the East Central Railway, Muzaffarpur and comes from an affluent family. It was further submitted that in his statement on solemn affirmation, the complainant has accepted that he was also doing construction work in the railway. So far as application of Section 406 of the Indian Penal Code is concerned, it was submitted that neither in the complaint petition nor during enquiry, the complaint had produced any chit of paper to show that any amount was given to the petitioner by the complainant. Learned counsel has also pointedly placed deposition of two witnesses, who were examined as enquiry witnesses. It was submitted that witness no.1 had not at all whispered as to whether at the time of occurrence, there was any third person. However, witness no.2 has developed a story that at the time of occurrence he was there along with the complainant and other witnesses. It has further been submitted that the petitioner is a government employee and due to steps taken by the petitioner in the light of proper supervision the present complaint was filed and, accordingly, order of cognizance is liable to be set aside. 5. I have also heard Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State. 6. No one appears on behalf of opposite party no.2. However, a counter affidavit has been filed on behalf of opposite 5 party no.2 in which he has reiterated the stand which has been taken in the complaint petition. 7. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on the record. After going through the contents of the complaint petition, the court is satisfied that the present complaint was filed maliciously against the petitioner, who, at the relevant time, was Assistant Divisional Engineer in the East Central Railway, Muzaffarpur. In the complaint petition there was no allegation of assault but, subsequently, the story of assault was developed. On the basis of materials on record, the court is satisfied that no offence under section 406 of the Indian Penal Code is made out. So far as other sections of the Indian Penal Code are concerned, the allegation appears to be not probable. The complainant has stated that at the time of occurrence there were three persons. In presence of three persons, it was not possible that a government servant will assault the complainant. 8. Accordingly, I am of the view that it is a fit case for interference with the order of cognizance dated 16.3.2007 passed by Judicial Magistrate, 1st. Class Muzaffarpur in Complaint Case No.970 of 2006/Tr. No.2617 of 2007, is hereby set aside and the petition stands allowed. Patna High Court The 16th November, 2010 Md.S./NAFR ( Rakesh Kumar, J.)