Criminal Miscellaneous No.33382 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- 1. BHOGENDRA CHOUDHARY SON OF LATE DIGAMBER CHAUDHARY 2. NIRMALA DEVI DAUGHTER OF LATE UPENDRA JHA WIFE OF BHOGENDRA CHOUDHARY 3. JAY MANGLA DEVI WIFE OF LATE DIGAMBER CHOUDHARY ALL RESIDENTS OF VILLAGE SAHURIA, P.O. DEOHAR, VIA BABUBARHI, P.S. ANDHERATHARHI, DISTT. MADHUBANI. ... ... PETITIONERS. Versus 1. THE STATE OF BIAHR 2. SHUBHKALA DEVI D/O LATE MUKUND MISHRA WIFE OF SRI BHAGENDRA CHOUDHARY, RESIDENT OF VILLAGE SIMRI NAVTOL, P.S. RAJNAGAR, DISTT. MADHUBANI. ... ... OPPOSITE PARTY. ---- For the Petitioners : Mr. K.P. Gupta, Adv. For O.P. No.2 : Mr. Ashok kumar Mishra, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Learned counsel for the petitioner Sri K.P. Gupta submits that during the pendency of this petition, petitioner no.3 died. 2. The petitioners, while invoking inherent jurisdiction of this Court under Section482 of the Code of Criminal Procedure, have prayed for quashing of order dated 6.3.1998 passed by Sub Divisional Judicial Magistrate, Jhanjharpur in Complaint Case No.529 of 1997. By the said order, the learned Magistrate has taken cognizance of the offence under Sections 323, 498(A), 379, 352 and 342 of the Indian Penal Code. Learned 2 counsel for the petitioners in presence of learned counsel appearing on behalf of opposite party no.2 informed that in the complaint petition, after order of cognizance, no effective subsequent order has been passed and the case is still pending at the same stage. 3. Short fact of the case is that the opposite party no.2, who is the wife of petitioner no.1, filed a complaint vide Complaint Case No.529 of 1997 disclosing therein that the petitioner no.1 has kept petitioner no.2 as concubine and petitioner no.2 is residing with petitioner no.1. It has further been disclosed that the accused persons had tortured the complainant and thereafter, she was compelled to leave the house of her inlaws and started to live in her Naihar (parents house) in the village Simri (Raj Nagar). It was further alleged that while the complainant was at her Naihar, the accused persons came there and after abusing her, they assaulted and also took her gold chain amounting to Rs.20,000/- and other articles and she was also thrown out from the house. After filing the complaint petition, the learned Chief Judicial Magistrate, after taking cognizance, transferred the case under Section 192 of the Cr.P.C. for its disposal to the 3 court of Sub Divisional Judicial Magistrate and the learned Sub Divisional Magistrate, prima facie, satisfied with the offence directed for issuance of summon for securing attendance of the accused persons i.e. petitioners. 4. Learned counsel appearing on behalf of the petitioners, while pressing the present petition, at the very outset, submits that petitioner no.1 is an old man aged more than 75 years and he retired from the Government service on 31.1.1997 as Accountant from the Electricity Board. After his retirement, when the retiral benefit was to be given to the petitioner, the complainant intervened and she wanted share in his retiral dues and due to that reason, for several months, retiral dues was not cleared by the Board in favour of the petitioner and petitioner was constrained to file a writ petition vide C.W.J.C. No.7649 of 1997. A Bench of this Court, after hearing the parties by its order dated 27.10.1998, disposed of the writ petition with a direction to the respondent to make payment within a specified period. However, this Court also observed that at the time of hearing, the fact was brought to the notice of the court by way of filing counter affidavit on behalf of the Board that retirement 4 benefit was not paid to the petitioner since his first wife was claiming her share out of total dues payable to the petitioner. It was also informed that a partition suit filed by the first wife i.e. the complainant was pending. The order dated 12.10.1998 has been brought on record as Annexure-4 to the present petition. It was further submitted that in a suit, which was filed by the informant on 17.1.1984, learned Subordinate Judge, Madhubani in Title Suit No.45 of 1981 directed for payment of Rs.300/- maintenance to the present complainant and since then the petitioner no.1 is regularly paying Rs.300/- for maintenance to the informant. The suit was subsequently decreed in favour of the complainant and thereafter, a First Appeal has been preferred by the petitioner, which is pending before this Court. 5. In view of the aforesaid fact, it has been submitted that the opposite party no.2, after not getting relief according to her wishes approached the criminal court only with a view to put pressure on him. It has been submitted that in view of the facts and circumstances as indicated above, it is evident that the complaint petition was filed maliciously and with oblique motive. Accordingly, it has been prayed to quash the order 5 of cognizance and entire proceedings in Complaint Case No.529 of 1997. 6. Sri Ashok Kumar Mishra, learned counsel appearing on behalf of opposite party no.2, has opposed the prayer of the petitioners. Learned counsel appearing on behalf of opposite party no.2, while referring to the contents of the complaint petition i.e. Annexure-1 to the petition, submits that contents of the complaint petition itself discloses commission of the offences and as such this Court, while exercise power under Section 482 of the Code of Criminal Procedure may not interfere with the impugned order at this initial stage. Accordingly, he has prayed to reject this petition. 7. Besides hearing learned counsel for the parties, I have perused the materials available on record including the order of cognizance and the complaint petition. From the record, it is evident that the petitioner no.1 retired on 31.1.1997 and as such the allegation of torturing at the fag end of his life appears to be not believable. Besides this, in view of the earlier litigations and admitted fact that the complainant was residing in her Naihar, the allegation of the occurrence of abuse, assault and stealing golden chain appears 6 to be doubtful. The court is of the opinion that the complaint petition was initiated maliciously and as such either order of cognizance or continuance of proceeding on such material amounts to abuse of the process of the court and with a view to prevent the abuse of the process of the court, it is necessary to interfere with the impugned order. 8. Accordingly, the order of cognizance dated 6.3.1998 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 6th July, 2010 N.A.F.R./N.H.