IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54056 of 2007 1. Anil Kumar Singh, Son of Yogeshwar Prasad Singh. 2. Suman Kumar Singh, Son of Anil Kumar Singh, residents of Village- Railway Emergency Colony, Quarter No. 279, B.P.S. Sadar, District- Katihar.............................................Petitioners. Versus 1. The State of Bihar. 2. Kaushal Kumar Singh, S/O Late Bhudeo Prasad Singh, resident of village- Nayatola Banka, P.S. Banka, District-Banka.....Opposite Parties. ----------- For the petitioners: Mr. Ashwani Kumar Singh, Sr. Advocate, M/S.Brij Nandan Prasad and Pankaj Kumar Singh, Advocates. For the O.P.No. 2 : M/S. Sanjay Kumar Jha, Rana Pratap Singh and Satyaveer, Advocates. For the State : Dr. Mayanand Jha, A.P.P. ----------- 04. 26.03.2010. Heard learned counsel for the petitioners and counsel appearing on behalf of opposite party no.2. It is submitted by both sides that the matter has not proceeded further after the order of cognizance dated 03.05.2007 passed by Sri B. N. Mishra, learned Judicial Magistrate, Ist Class, Banka, in Complaint Case No. 623 of 2007 whereby cognizance has been taken under Sections 451, 504, 384, 380, 323, 341/34 of the Indian Penal Code. The prosecution case as per the Complaint Case no. 623 of 2007 is that the accused persons entered into the house of the complainant on 15.04.2007 at 7.00 P.M. and on 2 point of pistol demanded 25,000/-rupees then Manjesh Kumar Singh was forced to part with Rs. 25,000/-then accused no. 3 took one V.I.P. bag in which there was Jewellery and some papers etc. and thereafter accused assaulted Manjesh Kumar Singh. It is lastly allegedly that while leaving the place the accused also threatened to make such collection in future also. In the last portion of the complaint, it has been alleged that the only son of the complainant has been married with the daughter of accused no.1 and they used to demand money and for that they have committed the present occurrence also. It is submitted by learned counsel for the petitioners that the petitioners are residents of Katihar whereas the complainant is resident of Banka but on frivolous complaint, cognizance has been taken without appreciating the fact that marriage of petitioner no.1’s daughter, Sharda Singh, has been performed with the only son of the complainant, namely, Manjesh Kumar Singh, and the daughter of petitioner no.1 has lodged a Complaint Case no. 262 of 2006 on 21.12.2006 in the court of the learned Chief Judicial 3 Magistrate, Katihar, for offences under Sections 323, 384,498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act in which trial is in progress whereas the present complaint case has been filed on 16.04.2007 after about four months of lodging of complaint by petitioner no.1’s daughter. My attention has also been drawn towards Annexure-3, which is Sanha No. 3005 of 2006, filed by the wife of petitioner no.1, against the complainant and his family members in which several allegations have been levelled against the complainant’s family with regard to torture being inflicted to the daughter of the petitioner no.1. Apart from that my attention has also been drawn towards Annexure-5, whereby in pursuance of some settlement the complainant’s son, Manjesh Kumar Singh, took the daughter of petitioner no.1 to his native village. Hence, it is submitted that the present case has been lodged as a retaliatory measure with the malicious allegations and this kind of procedure has been deprecated in the case of Baidyanath Jha Vs. Sitaram reported in 4 2008(8) S.C.C.77; Anjani Kumar Vs. State of Bihar 2008(5),Bhajan Lal Vs. State of Haryana reported in S.C.C.248 and 1992 Supplementary S.C.C. 335. Learned counsel for opposite party no.2 has submitted that the complaint discloses the prima facie case against the petitioners hence the order of cognizance deserves no interference. After hearing counsel for the parties and perusing the records, it appears that the complaint has been filed by Kaushal Kumar Singh against the parents and the brother of the wife of his only son, Manjesh Kumar Singh. This is not in dispute that Annexure-2 which is complaint petition under Sections 323, 384,498A of the Indian Penal Code and Section ¾ of the Dowry Prohibition Act has been filed on 21.12.2006 by the daughter-in- law of the complainant in which trial is at the advance stage and the present complaint was filed on 16.4.2007. Apart from that, a Sanha has also got recorded on 18.11.2006 about five months prior to lodging of the case as contained in Annexure-3. Hence, in that view of the matter, it 5 appears that the present complaint has been lodged maliciously as a retaliatory measure by suppressing the facts that the cases are going on between the parties. The prosecution case in the facts and circumstances does not inspire confidence at all. The two out of seven windows open in Bhajan Lal’s Case reported in 1992 Supplementary(1)S.C.C. 335(State of Haryana & Ors Vs. Bhajan Lal & Ors.) for quashing the prosecution are applicable in the present case. The fifth criteria of quashing criminal prosecution provided in Bhajan Lal’s case deals with the situation “Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.” In the present case also, it appears that allegations are absolutely unreasonable that the daughter-in-law’s family will not travel from Katihar to Banka and commit such 6 kind of an occurrence particularly in view of the fact that the matrimonial cases are going on between the parties. Hence, the present case is clearly covered within fifth criteria of Bhajan Lal’s case for quashing of criminal prosecution. The Seventh criteria for quashing criminal prosecution provided in Bhajan Lal’s case clearly enumerates that “ Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite venom due to private and personal grudge” such prosecution deserves to be quashed and in the present case, I find that the complaint case has been filed in retaliation to the case under Section 498A of the Indian Penal Code and Sanha which have already been filed by the petitioners’ side much prior to the present complaint, hence, under these score also the present prosecution case deserves to be quashed. On perusal of the order dated 03.05.2007 it appears that the learned 7 Judicial Magistrate, Ist Class, Banka, has passed the order mechanically because the last portion of the complaint petition clearly depicts that the case has been lodged by the complainant against the father, brother and other family members of the daughter-in-law of the complainant and matrimonial dispute is going on between the parties but the Judicial Magistrate, Ist Class, Banka, did not bother to ask any question from the complainant or from any witnesses that what type of dispute is pending or what is dispute regarding rather mechanically taken cognizance and this procedure has been deprecated by Hon’ble Apex Court reported in 1998(5) S.C.C. 749 (Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others)in following words: ”28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of 8 allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in brining charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” In view of the discussions made above, I do hereby quash the order of cognizance dated 03.05.2007 passed by Sri B. N. Mishra, learned Judicial Magistrate, Ist Class, Banka, and the entire criminal proceeding of Complaint Case No.623 of 2007 pending in the court of Judicial Magistrate, Ist Class, Banka, since it is absolutely malicious prosecution. This application is, accordingly, allowed. U.K. (Dinesh Kumar Singh,J)