CRIMINAL MISCELLANEOUS No.36477 OF 2000 ------ In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.MD. ABDULLAH son of late Md.Nezamuddin, resident of Moti Chowk, Opposite Canara Bank, Gandhi School Road, P.S.-Khagaul, Dist.-Patna 2.Md.Ejaz Ahmad @ Ejaz Ahamd son of Md.Gyasuddin, resident of S.P.Verma Road, P.S.-Kotwali, Dist.- Patna 3.Om Prakash Sonkharay, son of Ram Ranjan Prasad, resident of Police Colony, Paharpur More, P.S.-Gardanibagh Dist.-Patna. ……… …….Petitioners Versus 1.STATE OF BIHAR 2.Murari Kumar, son of Grijanandan Singh, resident of village Bakhtiyarpur Bazar, P.S.-Bkhtiyarpur, Dist.-Patna ------ For the petitioners: Mr. Tej Pratap Singh For the State : Mrs. Indu Bala Pandey, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR --------- Rakesh Kumar,J. Three 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 28th March, 2000 passed by the Judicial Magistrate, Ist Class, Patna in Complaint Case No.325C of 2000. By the said order the learned Magistrate has taken cognizance of the offence under section 379 of the Indian Penal Code. 2. Short fact of the case is that opposite party no.2 filed a complaint on 1st March, 2000 in the court of Chief Judicial Magistrate, Patna which was numbered as Complaint Case No.325C of 2000. In the complaint petition it was alleged that on 29.2.2000 at about 3 P.M. near Bikram Hotel, Exhibition Road, Patna Bhavesh Kumar after taking collection from Exhibition 2 Road was coming. In the meanwhile 4-5 accused persons surrounded him and thereafter he was pushed to a lane and the accused persons forcibly took Rs.15,000/- from the bag by showing pistol and fled away. Thereafter on alarm raised by Bhavesh Kumar, several persons assembled there. The said occurrence has taken place at 3 P.M. It was further alleged in the complaint petition that at about 4 P.M. the petitioner no.1 while coming on a bicycle was caught by 2-3 persons and it was said that petitioner no.1 was the person, who had committed the occurrence of loot of Rs.15,000/- from Bhavesh Kumar. Thereafter, he was apprehended and before a number of witnesses the petitioner no.1 disclosed names of petitioner nos.2 and 3 as his associates. In the meanwhile a police petrol party arrived there and petitioner no.1 along with the complainant and one another persons were carried to the police station. It has further been alleged that instead of booking Md. Abdullah in a criminal case, the police in collusion with petitioner no.1 falsely implicated Bhavesh Kumar and Dharamveer Kumar in the case. On the basis of aforesaid allegation, the complaint petition was filed and after conducing enquiry the learned Magistrate took cognizance of the offence under section 379 of the Indian Penal Code. 3. Aggrieved with the order of cognizance all the three petitioners approached this court by filing the present petition. On 5.11.2001 while issuing notice to opposite party no.2, this court directed that till further orders, further proceeding in Complaint Case No.325C of 2000 pending in the court of Judicial 3 Magistrate, Patna shall remain stayed. In spite of service of notice, none appeared on behalf of opposite party no.2 and, as such, on 21.2.2002 the case was admitted for hearing and again notice was issued to opposite party no.2 and it was directed that pending final hearing of this application interim order dated 5.11.2001 shall remain operative. The order of stay is still continuing. 4. Mr. Tej Pratap Singh, learned counsel appearing on behalf of the petitioners, while questioning the order of cognizance and initiation of proceeding on the complaint petition, submits that the present complaint petition was falsely filed by the complainant with a view to protect the two accused persons, who are related with the business of Kumar Motors, Exhibition Road of which the complainant is proprietor and partner. Learned counsel for the petitioners submits that due to wrong identification petitioner no.1 was apprehended by the complainant, the partner and associates of Kumar Motors, Exhibition Road along with other persons and they started assaulting the petitioner no.1 on the plea that petitioner no.1 was involved in the occurrence of loot which had occurred one hour before apprehension of petitioner no.1. It was submitted that after arrival of the police, petitioner no.1 informed the police and on the basis of fardbeyan of petitioner no.1 a first information report was registered against Dharamveer Kumar and Bhavesh Kumar, who were associated with the business of Kumar Motors, Exhibition Road, Patna of which the complainant is proprietor. Learned counsel for the petitioners has referred to annexure-3 to the petition which is a photo copy of 4 certified copy of first information report in Gandhi Maidan P.S. Case No.55 of 2000. It was submitted that the informant of Gandhi Maidan P.S. Case No.55 of 2000 is the petitioner no.1. The petitioner no.1 was an authorized agent of Syndicate Bank and, while he was returning after collecting deposit from different customers, he was apprehended by the accused persons of Gandhi Maidan P.S. Case No.55 of 2000 and was brutally assaulted. It was submitted by learned counsel for the petitioners that since associates of complainant were made accused by petitioner no.1, maliciously the complainant had filed the present petition. Learned counsel for the petitioners has further submitted that after the order of cognizance on several dates the complainant had not produced any witness at pre-charge stage. On the ground of false implication as well as malicious prosecution, learned counsel for the petitioners has prayed for quashing of the impugned order of cognizance. 5. Mrs. Indu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State, has opposed the prayer of the petitioners. 6. Besides hearing learned counsel for the petitioners and the State, I have also perused the materials available on the record. On perusal of annexure-3 to the petition, which is a photo copy of the first information report of Gandhi Maidan P.S. Case No.55 of 2000, the court is satisfied that on wrong identification the petitioner no.1 was apprehended by people of the locality of Exhibition Road, Patna including the persons, who were closely 5 Patna High Court The 31st August,2010 Md.S./NAFR associated with the business affairs of the complainant. In the said first information report two persons were made accused, who were non-else but closely associated with the complainant. Bhavesh Kumar is brother of the complainant and Dharamveer Kumar is staff of the complainant and both are accused in Gandhi Maidan P.S. Case No.55 of 2000. This court is satisfied that the present complaint i.e. Complaint Case No.325C of 2000 was filed in a designed manner. As such, it is a fit case for interference with the order of cognizance. 7. Accordingly, the order of cognizance dated 28th March, 2000 passed by Judicial Magistrate, Ist Class, Patna in Complaint Case No.325C of 2000 is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)