IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39921 of 2006 PRADEEP KUMAR RASTOGI, SON OF LATE JAGDISH PRASAD RASTOGI, RESIDENT OF VILLAGE-JAHANABAD(KUDRA),P.S. KUDRA, DISTRICT KAIMUR AT BHABUA………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. RABINDRA KUMAR RAUSHAN, SON OF GANESH PASWAN, RESIDENT OF VILLAGE-MEVRA, P.S. KUDRA, DISTRICT- KAIMUR(BHABUA). ………………………………………………….OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Dr. Amrendra Kumar and Lal Bahadur Pandey, Advocates. For the State : Dr. Mayanand Jha, A.P.P. For O.P. No.2 : M/s. Arbind Nath Pandey and Bijay Bahadur Tiwari, Advocates. ---------- O R D E R This application at the instance of accused no.1 of Complaint Case No.9(C) of 2006 is for the quashing of the order dated 7.7.2006 passed therein by Sri R.K. Tripathi, the erstwhile Judicial Magistrate, First Class, Bhabua, whereby the court was pleased to take cognizance for the offences under Sections 419, 348, 506 and 323 I.P.C. and directed for filing of requisites. One Rabindra Kumar Raushan, the complainant, impleaded herein as O.P. No.2, filed the aforesaid complaint petition on 5.1.2006, inter alia alleging that he had given some money to accused no.1 as advance for purchasing his land and on 13.5.2006 at about 12 noon when he went to remind him regarding selling of the land in question, accused no.1, refused to sell and also refused to return the - 2 - money and when the complainant remonstrated and demanded return of the money advanced he abused him by calling him “Saale Dushadh Chamar” and also castigated him and threatened him with his liquidation. An altercation developed and in the mean time accused no.2 arrived and started abusing the complainant by addressing him also as “Saale Dushadh Chamar” and suggested assaulting him in such a manner that his limbs were fractured. Inspired by the arrival of accused no.2 and his vituperation accused no.2 allegedly took out his shoes and started assaulting the complainant who raised alarm attracted whereby the people of the neighbourhood arrived and saved the situation for the complainant. The complainant claimed to have approached the police who assured to send the case to the court but, in fact, did nothing. Hence, the complaint petition. Assailing the impugned order it was submitted on behalf of the petitioner that it would be apparent from a reading of the complaint petition that no offence under Sections 419, 348, 506 and 323 appear to have been made out therefrom and without considering the same and without examining the other independent witnesses the court merely on the basis of the complaint petition and the statement of the complainant had taken cognizance. In this connection, it was sought to be submitted that it would be apparent that cognizance under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act had not been taken which only goes to show that there had been non application of the mind by the learned Magistrate and he had acted mechanically. Denying the allegation of having - 3 - received advance money towards selling of land it was submitted that the amount of money advanced has not been disclosed in the complaint petition which had been filed by way of a counter blast to the proceeding pending between the parties under Section 144 Cr.P.C. wherein the order was passed in favour of the petitioner. It was further submitted that the petitioner had filed a petition under Section 188 Cr.P.C. against the complainant-O.P. No.2 and the proceeding thereunder was pending and it was primarily due to the animus existing between the two that the false and vexatious complaint had been filed after a delay of almost 8 months and no explanation for such inordinate delay had been furnished. Although O.P. No.2 has appeared by filing vakalatnama , no show cause or written statement has been filed on his behalf and mere oral submissions have been advanced by his learned counsel wherein he sought to justify the impugned order. Admittedly, though a plea of money having been advanced to accused no.1 towards sale of his land has been made, unfortunately the amount advanced has not been disclosed in the complaint petition and in the background of the submissions made by the learned counsel for the petitioner it is obvious that the complaint had been filed with an ulterior motive and there is apparent lack of the ingredients of the offences whereunder cognizance has been taken. In view of the discussions made above, I am of the opinion that the continuance of the proceeding in the background stated above, would be an abuse of the process of the court and is required to be - 4 - quashed. Accordingly, the impugned order, so far as the petitioner is concerned, is hereby quashed and the application of the petitioner is allowed. (Abhijit Sinha,J) Patna High Court, Patna. Dated:The 20th day of May, 2009. Pradeep Srivastava/A.F.R.