CRIMINAL MISCELLANEOUS No.3653 OF 2002 In the matter of an application under Section 482 of the Code of Criminal Procedure ----------- 1. Mithilesh Pandey , Son of Dharm Deo Pandey, 2. Daya Shankar Pandey, Son of Dwarika Pandey 3. Sheojee Pandey, Son of Dwarika Pandey 4. Kameshwar Pandey, son of Late Chandrika Pandey 5. Ganga Pandey, Son of Jag Narayan Pandey 6. Hari Shankar Pandey alias Ram Shankar Pandey, Son of Ram Ratan Pandey All residents of Village-Niranpur, Post Office, Kateya, Police Station Behea, District-Bhojpur --------- Petitioners Versus 1. THE STATE OF BIHAR 2. Sukh Deo Lathore Natua, Son of Inderman Lathore Netua, resident of village – Nirampur, Police Office Kateya, Police Station-Behea, District-Bhojpur ------------ Opp.Parties. -------------- For the petitioners: Sri Kamal Nayan Choubey, Sr. Counsel For Opp.Party no.2: Sri Rajendra Nath Sinha, Advocate For the State: Smt. Indu Bala Pandey, A.P.P. -------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Six 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 1.12.2001 passed by the learned Judicial Magistrate, 1st Class, Arrah in Trial No.1121 of 2001. By the said order, learned Magistrate has taken cognizance of offences under Sections 147,323, 436/34 of the Indian Penal code and Section 3 (x) (xv) of the Schedule Castes and Schedules Tribes ( Prevention of Atrocities Act , 1989( hereinafter referred to as “ the SC/ST Act”). 2. Short fact of the case is that Opp.Party no.2 had earlier filed a written report before the Officer Incharge of Behea Police Station alleging therein that on 5.1.1999, while they were constructing house under “Indira 2 Awas Scheme”, accused persons armed with lathi and Bhala arrived there and abused the informant and other persons. They were restrained from proceeding with the work and accused persons also assaulted the informant’s side. It was alleged that accused persons had set on fire the hut of the informant. On the basis of written report, submitted by Opp.Party no.2, an F.I.R. vide Behea P.S. Case No.3 of 1999 was registered on 5.1.1999 for offences under Sections 147,323,504, 427 and 436 of the Indian Penal Code and under Section 3 (v) (x) of the SC/ST Act. During the investigation, allegation made in the complaint petition was found not true and, as such, final report was submitted by the police. After submission of the final report, notice was issued to the informant and despite service of notice, Opp.Party no.2 did not appear and, as such, by an order dated 13.10.1999, the learned Magistrate accepted the final report. While accepting the final report, the learned Magistrate also noticed that in the case a protest petition was also on record. Accordingly, it was directed to register a complaint case. After the protest petition was treated as Complaint, a case vide Trial No.1121 of 2001 was registered. After conducting enquiry, the learned Magistrate vide its order dated 1.12.2001 took cognizance of offences under Sections 147,323, 436/34 of the Indian Penal Code and Section 3 (x) (xv) of the SC/ST Act. 3. Aggrieved with the order of cognizance, the petitioners approached this Court by filing the present petition, which was admitted on 26.2.2004. While admitting , it was directed that during the pendency of the application, further proceeding in Tr.No.1121 of 2001 pending in the court of Judicial Magistrate 1st Class, Arrah shall remain stayed . The order of stay is still continuing. 4. Sri Kamal Nayan Choubey, learned Senior Counsel appearing 3 on behalf of the petitioners, while challenging the order of cognizance and proceeding in Tr.No.1121 of 2001 submits that the order of cognizance is liable to be set aside mainly on two grounds; firstly on the ground of malicious prosecution and secondly, the Opp.Party no.2 had not at all opposed the acceptance of the final report despite service of notice. Learned Senior Counsel appearing on behalf of the petitioners, while referring to Annexure-1 to the petition, i.e. typed copy of the F.I.R. of Behea P.S. Case No.3 of 1999, has submitted that the said F.I.R. was registered on the basis of written report filed by Opp.Party no.2 . In the written report, Opp.Party no.2 had mentioned his name as “ Sukhdeo Lathore”, which is at the bottom of page 21 of the petition. It was further submitted that during the course of investigation, it was found that the informant Sukhdeo Lathore was not by caste “Nat” and, as such he was not a member of either Scheduled Caste or Scheduled Tribe, as per Bihar Gazette Notification No.111 dated 21.5.1957. During the investigation, the allegation made by the informant/ complainant, was found untrue, which was also accepted by the learned Magistrate. The protest petition filed by Opp.Party no.2 was treated as complaint. In the protest-cum- complaint petition, Opp.Party no.2 has shown himself as “Sukhdeo Lathore Netua”. Learned Senior Counsel for the petitioners has also referred to Annexure-3 i.e. photo copy of the protest- cum –complaint petition. It was submitted by Sri Choubey, learned Senior Counsel that once the informant noticed that “Lathore” was not being considered as a member of Scheduled Caste or Scheduled Tribe, in a calculated manner in the Protest -cum- complaint petition with his name he added the word “Netua “to show that he was by caste “Nat” with a view to attract the penal provisions under the SC/ST Act. Sri Choubney on the 4 ground of changing the name of the informant/complainant has argued that this fact categorically shows that the complaint petition was initiated maliciously. Learned Senior Counsel for the petitioners has also argued that firstly the F.I.R. was lodged on instigation of some of the village enemy of the petitioners and in similar manner, the protest-cum- complaint petition was filed. Accordingly, it has been submitted that the impugned order of cognizance is fit to be set aside. 5. Sri Rajendra Nath Sinha , learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioners. It was submitted that Opp.Party no.2 during the investigation itself was apprehending that the police may not do justice with the case and, as such, he had filed a protest petition, which was subsequently treated as complaint petition and during the enquiry number of witnesses came forward to support the complainant’s case and the learned Magistrate after being fully satisfied with the materials available on record has passed the order of cognizance, which requires no interference. So far as ground , which was taken by Sri Kamal Nayan Choubey , learned Senior Counsel regarding the fact that the complainant was not a “Nat” by caste is concerned, it was submitted that those facts are not required to be examined by this Court, while hearing a petition under Section 482 of the Code of Criminal Procedure . It was submitted that time without number, it has been held that at the initial stage of a criminal proceeding, this Court may not conduct a roving enquiry and, as such, in the present case, those facts may not be looked into by this Court. It was submitted that it was consistent case of the complainant that the petitioners had committed the offences, for which cognizance order was passed. 5 6. Smt. Indu Bala Pandey , learned Addl. Public Prosecutor has appeared on behalf of the State. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. First of all the written petition was filed by Opp.Party no.2 , wherein he had disclosed his name as “Sukhdeo Lathore” and it was alleged that the petitioners had committed offences under Section 436 and other allied Sections of the Indian Penal code and Section 3 (v) ( x) of the SC/ST Act . The case was thoroughly investigated by the statutory Investigating Agency and during the investigation, the allegation made by the informant was not found true. The caste of the informant was also doubted during the investigation in view of the Gazette Notification. It appears that since the caste of the informant was being considered as doubtful during the investigation, in a calculated matter the informant filed a protest petition, in which he has added with his name as “Netua” to show that he was by caste “Nat”. The Court is of the opinion that this addition was with a view to attract the provisions of SC/ST Act. Accordingly, the Court is in agreement with the arguments advanced by Sri Kamal Nayan Choubdey, learned Senior Counsel for the petitioners that the prosecution is liable to be set aside on the ground that the same has been initiated maliciously and is covered under the category specified by the Apex Court in AIR 1992 SC 604 (State of Haryana Vs. Bhajanlal). 8. In view of the facts and circumstances of the case, the Court is of the opinion that allowing the prosecution of petitioners in the present complaint will amount to allowing the abuse of the process of the Court and with a view to prevent the abuse of the process of the court it is imperative to interfere with the impugned order and, as such, the order dated 1.12.2001 6 passed by the learned Judicial Magistrate, 1st Class, Arrah in Trial No.1121 of 2001 is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 4th February,2011 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)