CRIMINAL MISCELLANEOUS No.6207 OF 2000 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. BASUDEO CHOUDHARY, SON OF LATE SHYAM CHOUDHARY. 2. NITYANAND CHOUDHARY, SON OF BASUDEO CHOUDHARY. 3. BIKHO @ VIVEKANAND CHOUDHARY, SON OF BASUDEO CHOUDHARY. 4. RAMANAND CHOUDHARY, SON OF BASUDEO CHOUDHARY. 5. SANTOSH KUMAR CHOUDHARY, SON OF RAMANAND CHOUDHARY. ALL RESIDENTS OF VILLAGE AMKHORIA, POLICE STATION SAHKUND, (SAJOUR), DISTRICT BHAGALPUR. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. RAJENDER YADAV, SON OF LATE NARAYAN YADAV, RESIDENT OF VILLAGE DASPUR, TOLA RADHA NAGAR, POLICE STATION SAHKUND (SAJOUR), DISTRICT BHAGALPUR. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S S.M. Ashraf, Adv. Ranjit Sahay, Adv. For the State : Mr. Surendra Prasad Singh, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of entire criminal prosecution in Complaint Case No.C- 1122 of 1999 pending before the court of Shri A.K. Singh, Judicial Magistrate, Ist Class, Bhagalpur including the order dated 1.2.2000 whereby the learned Magistrate, after taking cognizance of the offence, has directed for issuance of summon against the petitioners. 2. Short facts of the case is that 2 the opposite party no.2 filed Complaint Case No.C-1122 of 1999 alleging therein that on 10.12.1998, the accused persons cheated the complainant and by making fraud, they had taken forty three thousand amount. On the pretext of transferring a land to the complainant though the accused persons have transferred the land of complainant itself to them. In the complaint petition, a distinct and separate allegation was made that on 10.12.1998, the accused persons entered into the house of the complainant and assaulted family members of the complainant and thereafter, they looted several house hold property of the complainant. In complaint petition on behalf of the complainant, certain documents were filed and thereafter, on behalf of complainant, it was prayed that complainant do not want to further produce any witness and matter was heard on cognizance. It is made clear that though complainant was examined on S.A, no witnesses were produced by the complainant save and except certain documents were produced and the learned Magistrate, by its order dated 1.2.2000, has passed the impugned order i.e. order of cognizance for the offence under Sections 420 and 395 of the Indian Penal 3 Code. The complaint petition was filed for offences under Sections 147, 148, 149, 307, 323, 395, 120B, 419, 420, 465, 467, 468, 504, 506 of the Indian Penal Code and 27 of the Arms Act. 3. Aggrieved with the order of cognizance, the petitioners approached this Court by filing the present petition, which was admitted on 6.3.2000 and while admitting, this Court directed that pending disposal, further proceeding in Complaint Case No.C- 1122 of 1999 pending in the court of Judicial Magistrate, Ist Class, Bhagalpur shall remain stayed and order of stay is still operative. 4. Mr. M.S. Ashraf, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance as well as initiation of proceeding in Complaint Case No.C-1122 of 1999, argued that the order of cognizance is liable to be set aside on the ground of malicious prosecution. Learned counsel for the petitioners has referred to Annexure-2 to the petition, which is a photo copy of certified copy of Complaint Case No.66 of 1999. It was submitted by learned counsel for the petitioners that the same complainant against petitioners had filed complaint for commission of offences under 4 Sections 147, 148, 149, 307, 323, 395, 120B, 419, 420, 504 of the Indian Penal Code and Section 27 of the Arms Act. In said complaint also, earlier date of occurrence was alleged as 10.12.1998, which is the first date of occurrence in the present case. In earlier complaint petition, the same allegation in respect of occurrence dated 10.12.1998 was made. So far as second part of allegation is concerned, there is also no difference save and except that in the present complaint, one more person has been added as accused i.e. Santosh Chaudhary, whose name finds place at Sl.No.4 of the accused column in Complaint Case No.C-1122 of 1999. It was further submitted that in the present complaint, petitioner no.1 was arrayed as Accused No.5, however, in Complaint Case No.66 of 1999, he was Accused No.1, petitioner no.2, Nityanand Choudhary was Accused No.2 in Complaint Case No.1122 of 1999, however, he was Accused No.2 in Complaint Cae No.66 of 1999, petitioner no.3, Vikky @ Vivekanand Choudhary was made accused as Accused No.2 in Complaint Case No.1122 of 1999, however, in Complaint Case No.66 of 1999, he was made Accused No.3, petitioner no.3, Ramanand Choudhary was Accused No.3 in Complaint Case No.1122 of 5 1999, however, Ramanand Choudhary was Accused No.4 in Complaint Case No.66 of 1999. Only name of Santosh Choudhary was added in the present complaint i.e. Complaint Case No.1122 of 1999. However, he was not made accused in Complaint Case No.66 of 1999 and one accused, namely, Ajay Kumar Katib, who is not petitioner before this Court, was made AccusedNo.6 in Complaint Case No.1122 of 1999 and same Ajay Kumar Katib was Accused No.5 in Complaint Case No.66 of 1999. 5. In earlier complaint i.e. Complaint Case No.66 of 1999, second part of occurrence relating to commission of dacoity was same allegation was same. However, date of occurrence in the present case was shifted from 24.1.1999 to 10.12.1999. In earlier complaint petition, date of occurrence relating to commission of dacoity was 24.1.1999. However, in the present case, date of dacoity has been mentioned as 10.12.1999. 6. Learned counsel for the petitioners has further referred to Annexure- 2/1 at page-22 i.e. copy of order dated 27.11.1999 passed in Complaint Case No.66 of 1999. By order dated 27.11.1999, the learned Judicial Magistrate had rejected the Complaint Case No.66 of 1999, main ground for 6 rejection of the said complaint was that the complaint petition was signed by his learned advocate on 15.1.1999 and it was filed. Thereafter, but in the complaint petition, date of occurrence was mentioned as 24.1.1999. The learned Magistrate, while dismissing the complaint petition was satisfied that the said story was fabricated. Accordingly, it has been prayed by Mr. Ashraf that almost on same allegation, the present complaint was filed and as such the learned Magistrate was not required to proceed with the present complaint. Only by way of changing the date of occurrence, the nature of allegation was not changed. It was submitted that once on the same allegation, the complaint petition was rejected, the second complaint was required to be rejected out rightly. However, the learned Magistrate has proceeded with the Complaint Case No.C- 1122 of 1999 by passing the impugned order of cognizance. Accordingly, it has been prayed that the order of cognizance as well as proceeding in Complaint Case No.C-1122 of 1999 is liable to be set aside both on the ground of malicious prosecution as well as on the ground of rejection of earlier complaint petition almost on similar ground. 7 7. In this case, despite service of notice on opposite party no.2, the opposite party no.2 has not preferred to appear before this Court either in person or through his advocate. 8. Shri Surendra Prasad Singh, learned Additional Public Prosecutor appears on behalf of the State and he opposes the prayer of the petitioners. 9. Besides hearing lerned counsel appearing on behalf of the petitioners and State, I have minutely perused both the complaint petition i.e. Complaint Case No.C- 1122 of 1999, which is at Annexure-1 and Complaint Case No.66 of 1999 annexed as Annexure-2 as well as order dated 27.11.1999 passed in Complaint Case No.66 of 1999 and the impugned order. On perusal of the complaint petition, the court is satisfied that the present complaint was filed maliciously. The court is also satisfied that after rejection of earlier complaint petition, almost on the similar allegation, the complainant was not required to file further complaint and, accordingly, the learned Magistrate was also not required to proceed with the said case. Once a complaint filed by the opposite party no.2, after 8 enquiry was rejected by the learned Magistrate, the subsequent complaint almost on similar ground was un-warranted and it amounts to a malicious complaint. 10. Accordingly, in view of malicious prosecution, it is necessary to interfere with the order of cognizance and as such order of cognizance dated 1.2.2000 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 9.7.2010 N.A.F.R./N.H.