IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.5849 of 2009 1. KEWAL NARAYAN SINHA, S/O LATE JANARDAN NARAYAN SINHA 2. SUMITA KUMARI, W/O KEWAL NARAYAN SINHA, BOTH RESIDENTS OF SUJAPUR, P.S. NATHNAGAR, DISTRICT BHAGALPUR .. PETITIONERS Versus 1. THE STATE OF BIHAR 2. SUSHMA DEVI, W/O RAJENDRA PRASAD YADAV, R/O SUJAPUR, ANATHALAYA ROAD, P.S. NATHNAGAR, DISTRICT BHAGALPUR .. OPPOSITE PARTIES **** For the petitioners .. M/S Krishna Moha, Praveen Kr. & Kumar Kaushi, Advs. For the State .. Mrs. Indu Bala Pandey, APP For the opposite party .. Mr. Vivekanand Vivek, Adv. **** /4/ 08.12.2010 Heard the counsel for the parties. 2. This criminal miscellaneous petition has been filed for quashing the order, dated 13.12.2008, taking cognizance in Nathnagar P.S. Case No. 227 of 2008, by which the Chief Judicial Magistrate, Bhagalpur, for offence under Sections 341, 323 and 504/34 of the Indian Penal Code. 3. The prosecution case, as alleged in the fardbeyan by the informant, is that the informant, Sushma 2 Devi, wife of Rajendra Prasad Yadav, went to the new house which has been purchased and enquired abut the illegal construction therein on which Kewal Narayan Sinha enters in verbal altercation stating that he has constructed and, thereafter, when the informant raised objection then there was physical altercation by Kewal Narayan Sinha and his wife and there is further allegation that Kewal Narayan Sinha snatched her golden chain and abused and since the informant is suffering from leaver disease developed a pain. The occurrence alleged to be on 10.09.2008 at about 09.00 a.m. and the first information report was lodged on 10.09.2008 at 10.45 p.m. 4. However, the petitioner, Kewal Narayan Sinha, has also filed a case for offence under Sections 341, 323, 447, 325 and 504/34 of the Indian Penal Code not mentioning the time of occurrence, but, the case has been lodged on 10.09.2008 at 09.00 p.m. alleging therein that while he was reading newspaper then Sushma Devi, along with her elder son, came and asked why he has raised the wall and caught hold hand of his wife and assaulted by brick on her mouth which caused the breaking of one of the teethes, hence, two fold submissions have been made. 3 5. It is stated that in the first information report of Sushma Devi the allegation for the injury is of such a slightest harm that no person of ordinary sense and temper would complain of such harm, i.e., taking the plea of exception of Section 95 of the Indian Penal Code and, further, contended that the case has been instituted to wreck vengeance in view of the fact that he has filed case against the complaint earlier and the case has been filed by the complainant to wreck vengeance to satisfy the malice. 6. The learned counsel for the opposite party, however, contended that it is a case and counter case and there is no mentioning of any injury and the complainant has herself admitted the occurrence and she can not be permitted to blow hot and cold at the same time. On one side she herself had filed a case though in her case there is no mentioning of time of occurrence, but, when she herself filed a case thereby admitting some occurrence between the parties and it is the matter of trial in which the fact will be tested. Since she has filed a case now she can not say that the occurrence of a such a slightest harm that the person of ordinary sense and temper will not complaint of such nature when she herself has filed a case with regard 4 to the same occurrence. 7. Hence, having regard to the facts and circumstances there is case and counter case with regard to the occurrence, hence, it is difficult to ascertain and decide that who is the actual person who initiated the occurrence and who was the aggressor and this can only be decided in the trial. 8. However, the learned counsel for the petitioners placed reliance on a decision reported in A.I.R. 1992 S.C., 604 (State of Haryana & Ors. Vrs. Ch. Bhajanlal & Ors.) to attract the principle of making allegation of wreck vengeance and placed reliance on A.I.R.1996 S.C., 1773 (Mrs. Veeda Menzes Vrs. Yusuf Khan Haji Ibrahim Khan & Anr.) to attract the principle of Section 95 of the Indian Penal Code allegation made if so trivial in nature that no ordinary person can take cognizance. However, taking into consideration the facts and circumstances that it is a case and counter case in which there is allegation and counter allegation with regard to the same occurrence, hence, the principle of Bhajanlal’s case (supra) would not apply. However, with regard to applying of Section 95 of the Indian Penal 5 Code the petitioner himself filed a case, hence, he can not take the plea that the occurrence is of trivial nature to quash his case. So far the allegation on face value to make out an offence and, hence, it s not proper to interfere with the impugned order at this stage. 9. This criminal miscellaneous petition is dismissed. S.A. ( Gopal Prasad, J.)