IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40126 of 2004 BIBHUTI NATH JHA, Son of late Sukhdeo Jha, R/o Tilka Manjhi, P.S. Kotwali, District Bhagalpur ……. Petitioner Versus 1. STATE OF BIHAR 2. Niranjan Kumar Sinha, Son of Ram Narayan Sinha, Resident of village Gola, P.S. Gola, District Hazaribagh at present residing at Chandi Prasad Lane, Jogsar, P.S. Kotwali, District Bhagalpur ……. Opp. Partes. ----------- For the petitioner : M/s B.P.Pandey, Sr. Advocate & S.K.Tiwari, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P.No. 2 : None O R D E R The petitioners is one of the two persons who has been arrayed as accused in Complaint Case No. 621 of 1999 and by this application a prayer has been made for quashing of the order dated 16.7.2004 passed by Sri Syed Mehboob Hassan, 5th Addl. Sessions Judge, Bhagalpur in Cr. Revision No. 374 of 1999 arising out of order dated 27.8.1999 passed by Sri B.K.Singh, Judicial Magistrate, 1st Class, Bhagalpur, in the said complaint case, whereby the learned Magistrate, took cognizance of offences under sections 406, 504 and 417 IPC against both the accused including the petitioner and directed for issuance of summons against them. One Niranjan Kumar Sinha, impleaded as O.P. No. 2 herein, filed the aforesaid complaint inter alia alleging that on 15.5.1997 there had been a negotiation in respect of 880 sq. feet of land appertaining to khata no. 747, khesra nos. 174 and 175 for an amount of Rs. 70,000/- and out of the said amount Rs. 25,000/- had been paid in advance and 2 a deed of agreement had been executed by Niraj Kumar Jha, the son of the petitioner, in favour of the wife of the complainant and it is said that this petitioner was one of the participant in the negotiation. It is also said that a receipt for the amount had been given by Niraj Kumar Jha to the complainant. It is also said that the said Niraj Kumar Jha held power of attorney of the landlord Sikandar Mandal and in consideration of the power of attorney the aforesaid deed of agreement had been executed. It is alleged that whenever the complainant asked the accused persons to execute the kewala they avoided the same on one pretext or the other and eventually asked the complainant to first provide Rs. 5000/- towards purchase of stamps which as per allegation had been paid by the complainant. It is further alleged that notwithstanding the payment no efforts were made towards execution of the kewala and to the contrary there was also no efforts on the part of the accused to return the money although a panchayati had also been held. A legal notice was sent by the complainant in response whereto the accused persons called the complainant at around 5 P.M. on 4.7.1999 and as per allegation when the complainant reached there the accused abused the complainant had tried to snatch away the relevant papers. It is alleged that the accused persons having received an amount of Rs. 30,000/- had played fraud upon him by taking Rs. 30,000/- and thereby committed breach of trust. Although O.P. No. 2 was duly noticed and put in an appearance by filing vakalatnama yet at the time of the hearing of the matter none on his behalf was present. 3 Assailing the impugned order it has been submitted that it would be apparent from perusal of the complaint petition and the circumstances narrated therein that the matter was clearly a case civil in nature which had been filed in court by way of complaint petition to harass and vex the accused persons. It was further submitted that from a perusal of the complaint petition it would be apparent that no offence either under sections 406, 504 or 417 IPC had been made out against the petitioner and his son and therefore the prosecution of the petitioner would amount to an abuse of the process of the court. Raising grievance against the order of the revisional court it was sought to be submitted that the revision filed by the petitioner had wrongly been dismissed on an erroneous interpretation of the decision reported in 2001(3) P.L.J.R. 468 (Birendra Narayan Choudhary Vs. State of Bihar). As observed in the case of State of Karnataka vs. Pastor P. Raju reported in (2006) 6 SCC 728 taking of cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage whereafter considering the materials placed before it the court decides to proceed against the offenders against whom a prima facie case is made out. Admittedly an order issuing process cannot be impugned in a revision since an order under section 204 Cr.P.C. issuing summons being an interlocutory 4 order revision is barred under section 397(2) Cr.P.C. and recourse . However, the order taking cognizance following an inquiry under section 202 Cr.P.C can always be impugned in a revision since it amounts to a final order. Even otherwise from a perusal of the complaint petition itself it appears that the entire dispute is civil in nature and does not disclose the commission of any of the offences whereunder cognizance has been taken since the ingredients of those offences have not been made out. That being the position the prosecution of the petitioner appears to be an abuse of the process of the Court. As stated above the learned counsel for O.P. No. 2 has not made any appearance and apparently there can be no justification in supporting the impugned order of the learned Magistrate as also the revisional court. In the result I find good grounds to interfere with the impugned order of the revisional court as also the learned Magistrate. Accordingly the impugned orders so far as the petitioner is concerned is hereby set aside and the application is allowed. Patna High Court, Patna. Dated : The 29th of July, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)