Criminal Miscellaneous No.197 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure ----------- 1. Gautam Singh , Son of Late Banarash Singh 2. Sanjay Singh@ Sanjay Kumar @ Pappu Kumar, Son of Gautam Singh 3. Raj Narayan Singh, Son of Late Ram Prasad Singh 4. Bindhyachal Singh, Son of Late Banarash Singh 5. Sameer Singh @ Sameer Kumar Singh Son of Shri Harishankar Singh 6. Sri Narayan Singh, Son of Late Deosharan Singh All are resident of Amar Chapra, P.S. Mufasil, District-Saran ------------------- Petitioners. Versus 1. THE STATE OF BIHAR 2. Sarshwati Devi Wife of Sri Kishun Rai, resident of Village- Amar Chapra, P.S. Mufasil, District-Saran --- Opp.Parties. ----------- For the petitioners: S/Sri Anil Kumar Singh & Surinder Kumar, Advocates. For Opp.Party no.2: Sri Kapildeo Singh-I, Advocate For the State : Smt. Indu Bala Pandey, A.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 the order dated 9.11.1999 passed by the learned Chief Judicial Magistrate, Chapra in Tr. No. 709 of 1999. By the said order, the learned Magistrate has taken cognizance of offences under Sections 406,419,420,323and 504 of the Indian Penal Code and directed for issuance of processes for securing attendance of the accused persons. 2. Short fact of the case is that Opp.Party no.2 filed 2 a complaint vide Complaint Case No.1411 of 1998 on 12.8.1998 in the court of the learned Chief Judicial Magistrate, Chapra. In the complaint petition, it was disclosed that petitioner no.1, Gautam Singh was Postmaster in the Sub-Post Office, Amar Chapra. It was alleged in the complaint petition that petitioner no.1 persuaded the complainant to deposit some amounts under a scheme of Mahila Samridhi Yojna and thereafter the complainant by way of depositing Rs.12/- got an account opened and subsequently she deposited further Rs.288/- and total amount of Rs.300/- was deposited by the complainant. It was further disclosed that on 20.11.1996, petitioner no.1 paid Rs.75/-to the complainant as interest amount and asked the complainant to take further amount in the next year. It was alleged that subsequently no money was given to the complainant. In the complaint petition, it was also disclosed that petitioner no.1 had taken Rs.600/- from one Raj Nandan Rai and he never returned the amount to Raj Nandan Rai. In the complaint petition, this fact has also been mentioned that petitioner no.1 was required to pay Rs.300/- to the husband of the complainant. When the complainant along with her husband went to the house of petitioner no.1 and demanded money, petitioner No.1 abused and thereafter petitioner nos.2, 3 and 6 assaulted both the complainant and her husband. On the aforesaid allegation, the complaint petition was filed. Subsequently, the complaint petition was referred to the police for registration of the F.I.R and investigation under Section 156(3) 3 of the Code of Criminal Procedure,1973 and accordingly an F.I.R. vide Chapra Mufasil P.S. Case No.325 of 1998 was registered on 18.8.1998 for the offences under Sections 406,419, 420,323 and 504 of the Indian Penal Code. After registering the case, while the police was investigating the same, the complainant after apprehending that she may not get justice from the police, filed a protest petition. During the investigation, the allegation made in the F.I.R. / Complaint was found not true and, accordingly, on 12.12.1998 a final form was submitted by the police indicating in its report the allegation found as untrue. However, learned Magistrate, differing with the final report, after examining the materials in the case diary and examining statements of witnesses recorded under Section 161 of the Code of Criminal Procedure , by order dated 9.11.1999 took cognizance of offences under Sections 406,419,420,323 and 504 of the Indian Penal Code and directed for issuance of processes against the accused persons. 3. Sri Anil Kumar Singh, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the prosecution against the petitioners was initiated maliciously. To substantiate the ground of malicious prosecution, learned counsel for the petitioners has firstly referred to Annexure-2 to the petition, which is an F.I.R. of Chapra Mufasil P.S. Case No.68 of 1998 dated 8.3.1998. He submits that for committing offences under Sections 457 and 380 of the Indian Penal Code , petitioner no.1 had earlier filed a complaint case vide 4 Complaint Case No.288 of 1997 on 17.11.1997 against the husband of the complainant as well as one Raj Nandan Rai, which was referred to police and an F.I.R. vide Chapra Mufassil P.S. Case no. 68 of 1998 was registered . Subsequently, while petitioner no.1 Gautam Singh and petitioner No.3 Raj Nanarayan Singh had gone to the office of Inspector of Police in relation to give statement in Chapra Mufasil P.S. Case No.68 of 1998 and while they were returning back, the husband of the complainant, namely, Sri Kishun Rai , his brother Ram Kishun Rai and associate Raj Nandan Rai, intercepted them and assaulted petitioner nos.1 and 3. In the said occurrence, the accused persons, who were armed with firm arms, after assaulting them forcibly took Rs.500/- from the pocket of petitioner no.1. After the said occurrence, petitioner no.2 filed a complaint vide Complaint Case No.1402 of 1998 on 11.8.1998, which was subsequently referred to the police for registration and investigation and, thereafter a case vide Chapra Mufasil P.S. Case No.323 of 1998 was registered on 16.8.1998 for offences under Sections 147,148,323,307,379 and 34 of the Indian Penal Code, which has been brought on record as Annexure-3 to the petition. In the said occurrence, after investigation police submitted chargesheet . It was submitted by Sri Singh that after investigating the case police submitted chargesheet vide Annexure-4 to the petition. In the case, chargesheet has been submitted for offences under Sections 147,148,323,379/34 of the Indian Penal Code against the husband 5 of the complainant, his brother Ram Kishun Rai and associate Raj Nandan Rai. 4. Learned counsel for the petitioners has vehemently submitted that second occurrence had taken place on 11.8.1998. He submits that while complaint petition was filed by petitioner no.3 on 11.8.1998 against the husband of the complainant, namely, Sri Kishun Rai , his brother and one another, the accused Ram Kishun Rai got the present complaint petition filed through the complainant in the present case who is her wife. He further submits that in the complaint, which was filed by the complainant against these petitioners, the complainant had disclosed in paragraph no.7 that petitioner no.1 had taken Rs.600/- from Raj Nandan Rai. While placing paragraph 7 of the complaint petition, which is part of the F.I.R., learned counsel for the petitioners submits that this shows that Raj Nandan Rai was none else but close associate of the husband of the complainant and Raj Nandan Rai was close to the complainant and her husband. He further submits that Raj Nandan Rai was cited as witness in Complaint Case No.288 of 1997, which was registered as Chapra Mufassil P.S. Case No.68 of 1998. On the aforesaid ground, learned counsel for the petitioners has argued that the present case was initiated maliciously and only with a view to put pressure on petitioner nos.1 and 3, so that they may not pursue two F.I.Rs i.e. Chapra Mufasil P.S. Case No.68 of 1998 and Chapra Mufasil P.S. Case No.323 of 1998, which were registered against husband of 6 the complainant and their associates. He further submits that even during the investigation, no other independent witnesses have supported the prosecution case and due to that reason the police, who has independently, honestly and fairly investigated the case, found the case not true and thereafter final form was submitted by the police. On the aforesaid grounds, the learned counsel for the petitioners has prayed for quashing of the order of cognizance of offences as mentioned above. 5. Sri Kapildeo Singh-I, learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioners by way of referring to the impugned order, i.e. order dated 9.11.1999. Learned counsel for Opp.Party no.2 has argued that while differing with the recommendation of the police report, the learned Magistrate has minutely examined the case diary and after examining the case diary, the learned Magistrate after being fully satisfied with the materials, has passed the impugned order of cognizance. He submits that the learned Magistrate in its order dated 9.11.1999 has referred to several paragraphs of the case diary. Learned counsel for Opp.Party no.2 has specifically placed paragraph 5 of the impugned order and submits that in paragraph nos. 6 and 7 of the case diary, the entire complainant’s case was corroborated and, as such, while passing the impugned order, the learned Magistrate has committed no error. He further submits that merely on the ground of submission of final form, the petitioners are not entitled to challenge the order 7 of cognizance. He submits that discretion lies with the Magistrate either to accept the police report or to differ with the police report and while differing with the police report, the learned Magistrate was only required to examine the materials available on the record and thereafter assign a reason. He submits that as per law, the learned Magistrate has examined the materials and thereafter by way of assigning a detailed reason, the learned Magistrate has passed the order of cognizance. Learned Counsel for Opp.Party no.2 has prayed that the present petition may be rejected. 6. Smt. Indu Bala Pandey, learned counsel for the State has opposed the prayer of the petitioner and has supported the stand taken by the learned counsel appearing on behalf of Opp.Party no.2 7. Besides hearing learned counsel for the parties, I have also examined the materials available on the record. Of course, while hearing a petition under Section 482 of the Code of Criminal Procedure, this Court is not required to examine the documents enclosed with the petition unless the same is legally proved, but in peculiar facts and circumstances of the present case, this Court has examined the Annexures of the petition. Annexure- 2 of the petition is photo copy of the certified copy of the F.I.R. of Chapra Mufasil P.S. Case No.68 of 1998 dated 8.3.1998, which was registered on the basis of complaint petition, i.e. Complaint Case No.288 of 1998 filed on 17.11.1997 by petitioner no.1 against the husband of the complainant and one Raj Nandan Rai. 8 The said F.I.R. shows that there was allegation against the husband of the complainant and Raj Nandan Rai for commission of offences under Sections 457 and 380 of the Indian Penal Code and, as such, petitioner no.1 has filed the said case. In the present case to substantiate the false allegation against the petitioners, the learned counsel for the petitioners has referred to paragraph 7 of the present complaint, which is part of the F.I.R. of Chapra Mufasil P.S. Case No.325 of 1998 and submits that it was alleged that the petitioner no.1 in the capacity of Postmaster had illegally taken Rs.600/- from Raj Nandan Rai. This indicates that Raj Nandan Rai was closely associated with the husband of the complainant. 8. Similarly, Annexure-3 is a photo copy of the certified copy of the F.I.R. of Chapra Mufasil P.S. Case No.323 of 1998, which was registered on the basis of complaint petition, i.e. Complaint Case No.1402 of 1998, which was filed just one day before filing of the present complaint petition on 11.8.1998. Perusal of the said F.I.R. makes it clear that the husband of the complainant along with his brother and accused Raj Nandan Rai had assaulted petitioner nos.1 and 3 due to that reason that they had gone to make statement before the police in connection with Chapra Mufasil P.S. Case No.68 of 1998, which was registered against the husband of the complainant. In the second case, i.e. Chapra Mufasil P.S. Case No.323 of 1998, subsequently chargesheet was submitted against the husband of the 9 complainant, his brother and Raj Nandan Rai. Copy of the chargesheet has been brought on record as Annexure-4 to the petition. 9. In the aforesaid circumstances, there is no doubt that the present complaint petition was filed just on the next day of filing of Complaint Case No.1402 of 1998 against the husband of the complainant in a designed manner and, as such, the Court is of the opinion that the present complaint petition was filed out and out maliciously and with a view to put pressure on the petitioners, so that they may not pursue the earlier cases. The circumstances further indicate that petitioner nos.1 and 3 was assaulted by the husband of the complainant only due to the reason that they had dared to make statement against him in earlier cases. So far as the reason, which has been purported to be assigned by the learned Magistrate, while taking cognizance of offence by the impugned order, is concerned, the learned Magistrate has heavily relied on paragraph nos.6 and 7 of the case diary. In paragraph 6 of the case diary, re-statement of the complainant was recorded. Obviously, the complainant will not deny the allegation made in her complaint petition and, as such, in normal course she had supported her earlier stand. Similarly, in paragraph 7 of the case diary, the police had recorded the statement of Raj Nandan Rai, who was none else, but close associate of the complainant’s husband and, as such, it was expected that he would make statement in support of the complainant. In the case, the allegation 10 in the present complaint petition was thoroughly investigated by the police and in absence of no independent witnesses the police came to the conclusion that the case was untrue and, as such, final report was submitted by the police. 10. In view of the facts and circumstances, particularly, the fact, which has been brought on record to show that the present complaint petition was filed maliciously, I am of the view that allowing prosecution on such complaint will amount to allowing abuse of the process of the court. With a view to prevent abuse of the process of the Court, it is necessary to interfere with the order of cognizance. 11. Accordingly, the order of cognizance dated 9.11.1999 is set aside and the petition stands allowed. Patna High Court,Patna Dated: the 20th May,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )