CRIMINAL MISCELLANEOUS No.46741 OF 2007 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.LAL CHAND LUHARUKA 2.Girdhari Luharuka Son of late Guljbari Lal Luharuka 3.Raj Kumar Luharuka son of Lal Chand Luharuka 4.Nawal Kumar @ Guddu Luharuka All sons of Girdhari Luharuka 5.Mahesh Luharuka son of Girdhari Luharuka 6.Prakash Kumar Luharuka son of Murari Luharuka All are resident of village and P.S.-Piri Bazar Dist.- Lakhisarai. ……. …….Petitioners Versus 1.STATE OF BIHAR 2.Arvind Kumar S/o late Vijay Prasad, village & P.S.- Piri Bazar. Dist.-Lakhisarai …… ……Opp.Parties ------- For the petitioners: Mr.Sanjeev Ranjan Mr.Sanjeev Shankar For Opp.Party No.2: Mr.Jyoti Ranjan Jha For the State: Mrs. Indu Bala Pandey, Addl.P.P. --------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. Six petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 24.8.2007 passed by Sub.Divisional Judicial Magistrate, Lakhisarai in Complaint Case No.403C of 2006. By the said order, the learned Magistrate has taken cognizance of the offences under sections 341, 323, 448 and 379/34 of the Indian Penal Code. 2. Short fact of the case is that initially on the basis of written report dated 12.12.2004 submitted by one Vijay Prasad a first information report vide Surajgarha (Piri Bazar) P.S. Case No.328 of 2004 was registered on 13.12.2004 on an allegation that on 30.10.2004 the petitioners had committed offences under sections 341, 342, 447, 323, 379/34 of the Indian 2 Penal Code. It was alleged in the first information report that the occurrence had taken place due to the dispute in respect of putting garbage near the shop of the informant. After registering first information report, police investigated the case and final form was submitted by the police showing the case as untrue. Final form was submitted on 18.11.2006. Before submission of final report, a protest petition was filed by the informant of the case i.e. Vijay Prasad. After submission of final report, notice was issued to the informant and thereafter final report was accepted on 29.11.2006. However, protest petition was treated as complaint case vide Complaint Case No.403C of 2006. In the complaint, enquiry was conducted and thereafter by the impugned order the learned Magistrate has taken cognizance of the offence as mentioned above. 3. Mr. Sanjeev Ranjan learned counsel for the petitioner at the very outset submits that first information report i.e Surajgarha (Piri Bazar) P.S. Case No.328 of 2004 was got registered by the informant of the case only with a view to create a defence in a case which was registered as per the instance of petitioner no.3. It was submitted that on 30.10.2004 itself in the morning the informant side of Surajgarha (Piri Bazar) P.S. Case No.328 of 2004 had assaulted the father of petitioner no.3 and in the said occurrence the accused persons had snatched watch as well as golden chain of father of petitioner no.3 i.e. petitioner no.1. Learned counsel for the petitioners has submitted that filing of the first information report after delay of 42 days from the date of occurrence is itself sufficient to indicate that in a 3 calculative manner the case was got registered. It has further been submitted that even after submission of final form and after examination of the complainant in the protest-cum-complaint petition the complainant of the said case has died and, as such, according to learned counsel for the petitioners, no purpose would be served in allowing prosecution in the said complaint case. In sum and substance, it has been submitted that the present complaint was filed maliciously and with an oblique motive. Accordingly, prayer has been made to set aside the order. 4. Mr.Jyoti Ranjan Jha, learned counsel for opposite party no.2, has vehemently opposed the prayer of the petitioners. It was submitted that during enquiry altogether five witnesses were examined in support of the complaint case and have corroborated the allegation made in the complaint petition. Accordingly, it has been prayed to reject the petition. 5. I have also heard Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. It is not in dispute that 1st first information report i.e. Surajgarha (Piri Bazar) P.S. Case No.289 of 2004 was lodged as per instance of petitioner no.3, who is son of petitioner no.1. In the first information report i.e. Surajgarha (Piri Bazar) P.S. Case No.289 of 2004, there was specific averment that the informant side of the present case had assaulted petitioner no.1 and, thereafter, 4 they had forcibly snatched his watch and golden chain. The said case was investigated and charge sheet was submitted. The first information report in Surajgarha (Piri Bazar) P.S. Case No.328 of 2004 was registered after about 42 days of the alleged occurrence. This indicates that 2nd first information report i.e. Surajgarha (Piri Bazar) P.S. Case No.328 of 2004 was got registered with a view to create a defence in Surajgrha (Piri Bazar) P.S.Case No.289 of 2004. Even allegation made in 2nd first information report i.e. Surajgarha (Piri Bazar) P.S. Case No.328 of 2004 was found untrue during investigation and, as such, final form was submitted which was accepted by the learned Magistrate. 7. In view of the facts and circumstances of the present case, the criminal proceeding on the basis of protest- cum-complaint petition i.e. Complaint Case No.403C of 2006 appears to be malicious and, as such, on the ground of malicious prosecution the court is of the opinion that it is a fit case for quashing the order of cognizance. 8. Accordingly, order dated 24.8.2007 passed by Sub.Divisional Judicial Magistrate, Lakhisarai in Complaint Case No.403C of 2006 is hereby set aside and the petition stands allowed. Patna High Court The 24th November, 2010 Md.S./NAFR ( Rakesh Kumar, J.)