IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6496 of 2008 KAMTA CHOUBEY …PETITIONER Versus 1. STATE OF BIHAR 2. RAMANAND MISHRA …OPPOSITE PARTIES For the petitioner : Mr. Sunil Kr. Singh & : MrAjay Kr. Singh. For the State : Mr.Abhimanyu Sharma,APP ----------- 06. 22.09.2010 Heard learned counsel for the petitioner and the State. Nobody appears on behalf of o.p.no.2, although notices were validly served. Petitioner is aggrieved by the order dated 30.03.2006, passed by learned Sub-Divisional Judicial Magistrate, Buxar in Complaint Case No.171(C)of 2002(T.R.No.2325 of 2006), whereby cognizance under sections 202,408 and 419/34 IPC has been taken. A brief background of facts needs to be indicated. O. P. No.2 being the son of Bharat Narain Mishra filed a complaint alleging therein that the accused persons in connivance with other officials of Veer Kuwar Singh University, Ara had defalcated the salary grant of the father of the complainant, namely, Bharat Narain Mishra who was initially appointed on temporary basis as a Lecturer in Hindi for few months. The salary meant for father of the complainant was illegally paid to another co-accused, namely, Uday Narain Rai. An enquiry in terms of section 202 Cr.P.C. was made whereafter learned court below took cognizance. While assailing the order impugned, it is stated that the present prosecution is thoroughly an abuse of the process of court 2 because of certain glaring facts appearing from records. The father of the complainant was appointed on temporary basis as Lecturer for six months sometime in the year 1966. The University Service Commission (hereinafter referred to as the ‘Commission’) subsequently advertised the post on 11.06.1966. Two persons were recommended by the Commission for appointment on the post in question. Name of co-accused Uday Narain Rai appeared at serial no.1, whereas the name of the father of the complainant appeared at serial no.2. The governing body of the college in question in the meanwhile was superseded by the Syndicate of the University on 31.05.1968. An ad hoc committee was constituted which started functioning with effect from 01.06.1968. On 28.07.1968, the ad hoc committee considered the recommendation of the Commission and appointed Shri Uday Narain Rai(one of the co-accuseds) on the post in question as his name figured at serial no.1. It appears that subsequently the Syndicate also approved the appointment of the aforesaid Uday Narain Rai. The temporary service/appointment of the father of the complainant was terminated by a communication dated 19.09.1968 (Annexure-3) which was subsequently approved by the Syndicate (Annexure-4). The father of the complainant subsequently filed Title Suit No.142/72 for setting aside the order by which his services were terminated and/or dispensed with. The said suit was decreed. A title appeal bearing Title Appeal No.29/90 was subsequently filed which was also dismissed. Aggrieved by the appellate order, co-accused Uday Narain Rai who was given appointment in place of the father of the complainant filed a 3 second appeal being S.A.No.260/96 before this Court which was admitted on 27.03.1997 and further proceeding in Execution Case No.11/96 was stayed (Annexure-5). There are different orders of this Court passed in the aforesaid S.A.No.260/96 indicating that prayer for vacating interim order made on behalf of the father of the complainant was considered and rejected. After all, these things happened, the son who is said to be an Advocate, filed the present complaint on 18.03.2002 with the allegation noticed hereinabove. Learned counsel for the petitioner states that materials on record would indicate that a dispute relating to the post of Lecturer between the father of the complainant and one of the co- accuseds, namely, Uday Narain Rai is already pending. The son of the complainant in his own wisdom filed this complaint in which his father has been cited as a witness. It is the submission of learned counsel for the petitioner that considering the factual matrix of the case, it would appear that the prosecution has been launched for oblique reason/purpose and is manifestly attended with malice. Continuance thereof shall be nothing but the abuse of the process of court. Learned counsel appearing on behalf of the State in view of the facts appearing from records is not in a position to support the present criminal proceeding. Having considered the submissions made on behalf of the parties, this Court is satisfied from the submissions made on behalf of the petitioner and noticed hereinabove that the present proceeding is sheer abuse of the process of the court. 4 Accordingly, the application is allowed. Order impugned dated 30.03.2006 is quashed and set aside. hr ( Kishore K. Mandal )