IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. 4491 of 2008 1. Rajesh Kumar Rajak @ Rajesh Rajak, Son of Ram Niwas Ram, resident of Village- Mahue Balha, Police Station- Koilwar, District- Bhojpur. 2. Raju Ranjan Ram @ Raju Ranjan Rajak, Son of Late Jagriti Ram, resident of Village- Mahue Balha, Police Station- Koilwar, District- Bhojpur. 3. Chhotu Ram @ Chhotu Rajak, Son of Sarju Rajak, resident of Village- Ratanpur, Police Station- Ara Mufasil, District- Bhojpur. ------Petitioners. -Versus- 1. The State of Bihar. 2. Sumit Singh @ Bittu Singh, Son of Om Prakash Singh, resident of Mahue Balha, Police Station- Koilwar, District- Bhojpur. ------Opposite Parties. --------- For the petitioners: Mr. Nityanand Tiwary, Advocate. For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No.2 : Mr. Ajit Kumar No.1, Advocate. ---------- O R D E R The three petitioners who have been arrayed as accused in complaint case no. 51( C ) of 2006 have prayed for quashing of the order dated 2.7.2007 passed therein by Sri R.K. Prasad, Judicial Magistrate, Ist Class, Arrah, whereby he has taken cognizance under Sections 323, 427 and 504/34 I.P.C. against all the three named accused and in addition thereto he has taken further cognizance under Sections 379/34 I.P.C. against accused Raju Ranjan Ram and Rajesh Kumar Rajak. One Sumit Singh @ Bittu Singh filed the aforesaid complaint case on 12.1.2006 alleging commission of offences under Sections 323, 379,427 and 504/34 I.P.C. at the hands of the accused at around 10 A.M. on 4.1.2006. It is alleged that at the relevant time while the complainant was in his house he saw the cow of accused Rajesh Kumar Rajak grazing in his fields in front of his house where - 2 - Chana and Masuri crops had been grown whereupon he chased the cow to the house of Rajesh Kumar Rajak and complained about the cow grazing his crops. It is alleged that accused Raju Ranjan and Chhotu Ram were sitting in the house of Rajesh and on hearing the complaint of the complainant, accused Rajesh became angry and started abusing him and when the complainant remonstrated for the abuse hurled at him accused Raju Ranjan instigated the other accused to kill the complainant. It is further alleged that whereas accused Rajesh caught hold of the hip of the complainant the other accused assaulted him with fists and slaps and on hearing alarm raised by the complainant the witnesses named in the complaint petition, rushed to his rescue. It is said that on seeing the witnesses coming, Rajesh allegedly snatched the H.M.T. watch worth Rs. 500/- and Raju Ranjan removed Rs. 200/- from the pocket of the complainant. It is said that crops Rs. 150/ had been damaged by Rajesh‟s cow grazing the fields. It is further said that the complainant informed the local administration by submitting a written report and on the basis thereof the Officer-in-charge came to the village, arrested the accused and took them to the police station but in the evening they were set free. It is also said that when the complainant saw the accused moving in the village in the evening he went to the police station to meet the Officer- in-charge, who could not be met. The complainant is again said to have gone to the police station on 10.1.2006 and on meeting the Officer-in-charge he was advised by the Officer-in-charge to approach the court. This led the complainant to apprehend that that - 3 - Officer-in-charge was in collusion with the accused. Hence the complaint petition. Assailing the impugned order, it has been submitted on behalf of the petitioners that they have been falsely implicated in this case on concocted accusations as no occurrence as alleged had taken place. In this connection it was submitted that the complainant himself is a Rangdar of the locality and had covetous eyes on the house and lands of the accused and in that regard always threatened them and their family members and in connection therewith Rajesh had filed a Sanha before the learned Chief Judicial Magistrate, Bhojpur at Arrah on 6.10.2005 which was numbered as Case No. 2296(i) of 2005 and the instant complaint was by way of a counter blast to the said case. It is also submitted that on another occasion the complainant alongwith other co-accused forcibly entered into the house of Rajesh and attempted to commit rape on his younger sister who fortunately was saved by the timely arrival of her parents and having failed in their attempt, the complainant and other accused assaulted them and having threatened them to vacate their house and lands left whereupon Rajesh reported the matter to the Koilwar police station on the basis whereof Kiolwar P.S. Case No. 2 of 2006 was registered under Sections 452, 323, 354 and 504 I.P.C. as also Section 3(1) (iv) of the Scheduled Caste and Scheduled Tribe(Prevention of Atrocities) Act against the complainant and others and presently the case is pending in the court of the learned Ist Additional Sessions Judge, Bhojpur at Arrah. It has also been submitted that the allegation of the complainant that the - 4 - petitioners were set free in the evening since the Officer-in-charge was in collusion with the accused persons has been denied and in this regard it has been submitted that they had been released only after the Officer-in-charge had investigated and verified the matter and had found the same to be false. It was submitted that no offence as alleged under Sections 323, 427, 504/34 I.P.C. appears to have been made out against any of the petitioners since no injury report had been produced by the complainant and since nothing had been recovered from the possession of either Rajesh or Raju no offence under Sections 379/34 I.P.C. can be said to have been made out against them. As final submission it was submitted that since the petitioners belong to Scheduled Caste and are in the category of „down trodden” people the complainant had filed the complaint case with the malicious intention of harassing and vexing them. The opposite party no.2 the complainant has appeared and although no counter affidavit or show cause has been filed on his behalf oral submissions have been made to justify the impugned order. It was sought to be submitted that since sufficient materials had come to light at the enquiry held under Section 202 Cr. P. C. to show the complicity of the accused persons in the commission of offences alleged the learned Magistrate had rightly taken cognizance and no apparent fault can be found with the said order. It was also submitted that at the enquiry under Section 202 Cr. P. C. the Magistrate was only required to consider the materials that become available at the enquiry held under Section 202 Cr. P.C. to see whether there is sufficient - 5 - materials to proceed against the accused and no materials extraneous to the materials coming to light at the enquiry under Section 202 Cr. P. C. can be looked into. There is no dispute in respect of the proposition of law as propounded by the learned counsel for the opposite party no.2. It was also submitted that the submissions advanced by the learned counsel for the petitioners unfortunately happen to be their defence which can not be looked into in a proceeding under Section 482 Cr. P. C. It is an age-old and well established principle of law that every court has inherent power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists or to prevent the abuse of the process of the court. In the case of State of Karnataka Vs. L. Muniswami and others ( A.I.R.1977 S.C. 1489) it was observed that in a criminal case the veiled object behind a lame prosecution, the very nature of material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. It was also held that considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as the one conferred by Section 482 Cr. P. C. ought not to be encased within the straight- jacket of a rigid formula. The depositions of the witnesses examined at the enquiry under Section 202 Cr. P. C. is not available before me but it is apparent from the impugned order that the learned Magistrate having considered the statement of the complainant on S.A. and the evidence - 6 - of four witnesses produced on his behalf found sufficient materials to proceed against the accused and therefore took cognizance. An offence under Section 427 I.P.C. is said to have been made out when one commits mischief and thereby causes loss or damage to the amount of Rs 50/- or upwards. The word “ mischief‟ has been defined in Section 425 I.P.C. which states that “whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”. From a perusal of the complaint petition there does not appear any averment that the cow of Rajesh had intentionally been left to graze in the fields of the complainant. There is also no motive imputed to show that intention of causing mischief was writ large on the part of Rajesh. Therefore, the cognizance under Section 427 I.P.C. does not appear to have been made out. Cognizance taken thereunder in my opinion was not correct. Section 504 I.P.C. is a remedy attracted only when the accused insults the complainant and such insult must be of such a nature that it should be a provocation to the complainant and that the accused intended or knew that the provocation was likely to cause the complainant to either break public peace or to commit any other offence. Reference in this connection may be placed on a decision of K. P. Sinha Vs. Aftabuddin (A.I.R. 1955 Patna 453). - 7 - The only allegation in the complaint is that when the complainant resisted attempts made by the complainant regarding the cow of Rajesh grazing his fields the accused persons abused him but neither the complainant has given out the actual words used in the complaint which were said to have been used by the accused nor he has stated in his complaint that he had been provoked by the insulting abuse. In this view of the matter even an offence under Section 504 I.P.C. does not appear to have been made out against the petitioners and taking cognizance thereunder does not appear to be proper. Even the accusation of theft of watch from the hands of the complainant to my mind appears to be an accusation of despair. When a watch is forcibly snatched from the wrist of its owner some tell-tale marks are bound to be left behind in proof of the forceful snatching. However, there does not appear from perusal of the complaint that any such mark had been left behind on the wrist of the complainant after his watch had been allegedly snatched. The other aspect of the matter is in respect of the theft of Rs.200/- from his pocket. Admittedly, the complainant was sitting in his house and in such a situation no person would be in possession of Rs. 200/- in his pocket. In the face of what has been discussed in the foregoing paragraphs the allegation of offence under Section 323 I. P. C. appears to have been made to somehow implicate the petitioners. With the backgrounds of the enmity and the covetous eyes of the complainant to usurp the house and lands of the petitioners the falsity of the case by way of a counter blast becomes all the more prominent and - 8 - plausible and this Court in exercise of power under Section 482 Cr. P. C. will not sit idle to propagate an instance of the abuse of the process of the court. In view of the facts and circumstances and the discussions made in the foregoing paragraphs, I am of the opinion that allowing the continuance of the criminal proceeding would be an abuse of the process of the court. Accordingly, the impugned order is hereby set aside and the application is allowed. (Abhijit Sinha,J) Patna High Court, Patna Dated: the 21st July,2009. U.K./A.F.R.