IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25142 of 2007 DINA NATH PRASAD @ DEENA NATH Son of Sri Kedar Nath at Present Co-operative Extension OFFICER, Bela Block, Gaya, Permanent resident of kaima Chikoh, P.S.- Chowk, Patna City, District- Patna. ----------------------Petitioner Versus 1. THE STATE OF BIHAR 2. Mr. Pradip Kumar Gupta, Son of Sri Kailash Prasad, Resident of Mohalla- Paschim Darwaza, P.S.-Alamganj, District- Patna -----------------Opposite Party ----------- 5. 10.7.2009 This application has been filed for quashing the order dated 18.01.2000 passed by the Judicial Magistrate, Ist Class, Patna City taking cognizance for offence under Sections 323, 427, 120(B)/34, 166, 341 and 504 of the Indian Penal Code and also under Section 122 of the P.C. Act. The allegation as made out in the complaint case is that on the order of the High Court of the year 1995 to remove the encroachment, the petitioner who was at that time Magistrate incharge of law and order along with the P. R.D.A. Officials went to remove the encroachment. It is alleged that the petitioner removed the encroachment with respect to certain construction including the construction made by the complainant’s brother and did not remove the encroachment of a market situated in Patna City known as Rani market and, therefore, it is alleged that the petitioner acted with discrimination. While taking cognizance, the Magistrate erred in law in relying on a documents relating to encroachment case pending against some of the accused persons who are the owner of the Rani market - 2 - and tried to show that in fact, there is a case pending for removal of the encroachment. These documents ought not to have been considered by the Judicial Magistrate while taking cognizance and if he has done so he should have realized that there is already a dispute with respect to removal of encroachment before the competent authority and until that dispute is decided the encroachment could not have been removed. The Judicial Magistrate has also taken note of the fact that some of the Police constable assaulted the complainant’s brother and abused him. However, there is no allegation of assault against the petitioner. The entire order of cognizance is rather like an order which could be passed in a case arising out of a civil dispute rather than the order of cognizance. The Court ought to have seen whether any offence under the sections alleged have been made out against the petitioner. Apart from that, the Court below has concluded from the documents of the encroachment case that this petitioner was flouting the orders of this Court. In case such was a fact, it was open to the complainant or anyone aggrieved by the actions of the petitioner to bring it to the notice of the Court in the concerned writ application by filing an I.A. application or by way of filing a writ application alleging that this petitioner was flouting the orders of this Court. However, this was not done and instead of that the complainant has misused and abused the process of law by filing this complaint petition. The contents of the complaint petition do not make out any offence under Sections 323, 427, 120(B)/34, 166, 341 and 504 of the - 3 - Indian Penal Code as far as the petitioner is concerned, apart from which the Court below could not have taken cognizance under Section 122 of the Prevention of Corruption Act. The Prevention of Corruption Act lays down procedure under which it can invoke the case under the Prevention of Corruption Act by a Special Judge appointed by the Central Government or the State Government and the Judicial Magistrate does not have the power to take cognizance besides which offence under Sections 7 and 11 are not made out in this case. If at all the complainant had any grievance against the petitioner, there is a proper procedure for bringing it to the notice of the competent authority. I, therefore, find that the complainant has misused and abused the process of law because of a dispute with the other co- accused persons with regard to the possession of the Rani market. In the result, the order of taking cognizance as far as it concerns the petitioner is quashed. P. Kumar (Sheema Ali Khan, J.)