CRIMINAL MISCELLANEOUS No.21351 OF 2000 --------- In the matter of an application under section 482 of the code of Criminal Procedure. -------- BINOD KUMAR DUDANI son of Sri Chaturbhuj Prasad Dudani, resident of village-Gisara, P.S.-Parsauni, Sitamarhi, at present posted as District Treasury Officer, Gopalganj, District-Gopalganj. ……. …….Petitioner Versus 1.STATE OF BIHAR 2.Banaras Rai, son of late Shivdhari Rai, Resident of village-Bajitpur Turkwalia P.S.-Chhapra (Mufassil), Dist.-West Champaran presently-Tube-well Mechanic, PHED, Gopalganj Div. ……. …….Opp. Parties. --------- For the petitioner: Mr.R.K.Sinha-2 For the State: Mrs. Indu Bala Pandey, A.P.P. -------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR -------- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Criminal Procedure Code has prayer for quashing of an order dated 07.07.2000 passed by learned Chief Judicial Magistrate, Gopalganj in Trial No 353 of 2000. By the said order, the learned Magistrate has taken cognizance of the offences under Sections 504 and 506 of the Indian Penal Code. 2. Short fact of the case is that opposite party No 2 filed a complaint in the Court of Chief Judicial Magistrate, Gopalganj on 2.03.2000 which was numbered as Complaint Case No 275 of 2000. In the complaint petition, it was alleged by the complainant that on 28.08.2000 at about 3 P.M., he being tube-well mechanic, posted in PHED, Gopalganj, was doing repairing of a tube well which was located in the office premises of Gopalganj Treasury. The petitioner, who was 2 Treasury Officer, Gopalganj, arrived and started abusing the complainant. It was alleged that complainant was abused by the petitioner in presence of several persons. After filing of the complaint, the learned Magistrate conducted an enquiry. Thereafter, by an order dated 07.07.2000 the learned Magistrate took cognizance of the offences under Sections 504 and 506 of the Indian Penal Code and directed for issuance of summons against the petitioner. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 29.08.2001, while issuing notice to opposite party No 2, this Court directed that in the meantime, further proceedings in Trial No 353 of 2000 pending in the Court of CJM, Gopalganj as against the petitioner shall remain stayed until further orders. Thereafter, on 14.02.2000, this Court while admitting the petition directed that pending hearing of this application, interim order dated 29.08.2001 shall remain operative and the same is still continuing. 4. Mr R K Sinha No 2 learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance as well as initiation of criminal proceeding on the basis of complaint in the present case, at the very outset submitted that the complaint petition was filed maliciously in view of the fact that prior to the filing of the complaint petition, an occurrence had taken place in the office of the petitioner in which several employees of the PHED had ransacked the office of the petitioner on the question of passing of the bill in respect of arrears of revised pay. Learned counsel for the petitioner has referred to 3 Annexure-4 to the petition prepared under the signature of Additional Collector, Gopalganj. It was submitted that for the said occurrence, on the basis of protest raised by this petitioner for earlier occurrence, an enquiry was conducted and it was found that one Rajendra Kumar Srivastava, who was leader of the Employees Union of the PHED, had ransacked the office of the petitioner which was found true in the enquiry conducted by the Additional Collector. It was further submitted that Department had also got the matter enquired into from the PHED on the point as to whether on the date of occurrence i.e. on 28.8.2000 any tube- well mechanic was deputed for repairing work of the tube-well installed in the premises of the Treasury Office, Gopalganj. However, it was confirmed by the Executive Engineer, PHED that on the date in question, neither there was any complaint for repairing nor any tube-well mechanic was deputed for conducting repair work. On the aforesaid grounds, it has been submitted by the learned counsel for the petitioner that at the instance of the Employees Union of PHED, the present complaint was got filed. It was submitted that it is not probable that officer of the rank of petitioner would indulge in such act and, accordingly, it has been prayed to quash the order of cognizance. 5. I have also heard Mrs Indu Bala Pandey, learned counsel appearing on behalf of State, who has opposed the prayer of the petitioner. 6. It is true that the point which has been raised by the learned counsel for the petitioner was required to be raised before the concerned Court where the matter was pending but in view of the fact 4 Patna High Court The 21st July,2010 Md.S./NAFR that the order of cognizance was itself stayed by this Court long back on 29.08.2001 and, thereafter, no progress had taken place in the case before the Court below, it would not be appropriate to refuse the prayer of the petitioner to examine this matter. Accordingly, I have examined the materials available on the record and the Court is satisfied that the complaint petition was filed maliciously and on the ground of malicious prosecution, the order of cognizance is liable to be set aside. 7. Accordingly, order of cognizance dated 07.07.2000 passed by learned Chief Judicial Magistrate, Gopalganj in Trial No 353 of 2000 arising out of Complaint Case No 275 of 2000, in view of the facts and circumstances mentioned hereinabove, is set aside and the petition stands allowed. (Rakesh Kumar,J.)