IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.550 of 2009 1. GLADDY JOSUA, son of Late Lestar Josua. 2. Kristal Josua, Son of Late Ravi Pol. 3. Nutan Josua, Wife of Kristal Josua. All R/O Christain Quarter, P.S. Bettiah Town, District – East Champaran. 4. Kristy Josua, W/O. Ravi Pol, R/O. Mohalla – Birsa Nagar, P.S. – Jamshedpur, District Jamshedpur (Jharkhand). .......... Petitioners. Versus 1. THE STATE OF BIHAR 2. Arvind Kumar, Son of Late Ramnarayan Prasad, R/O. Charch Road, Christian Quarter, near Santmarry School, P.S. – Bettiah (Town), District – East Champaran. ............ Opp. Parties. ----------- 05/ 02.02.2011 This is a petition for quashing the order dated 21.10.2008 passed by the Judicial Magistrate, First Class, Bettiah, East Champaran in Complaint Case No. 7(C) of 2007 by which the process has been ordered to be issued against the accused persons after taking cognizance for offence under Section 388 and 389 of the Indian Penal Code. 2. The Opposite Party No. 2 is the complainant and the petitioners are the accused in the complaint. 3. The Prosecution case as alleged in the complaint petition that the complainant purchased the house and the land appurtenant to by registered sale deed executed by Kishore Josua on 29.01.2005. The said house was standing on the said land to the extent of 4 Dhur 13 Dhurki 2 and the accused persons are father, brother, sister and Bhabhi of Kishore Josua. It has further been alleged that the Kishore Josua died by setting in fire while he was preparing tea. On the death of Kishore Josua, the accused persons demanded Rs.50,000/- from the complainant illegally through the witness Ajay Patel under a threat to pay Rs.50,000/- else he will be falsely implicated in murder case of Kishore Josua. The complainant opposite party no. 2 refused to pay Rs.50,000/-. It is further alleged that on refusal the accused persons managed and put the complainant behind the bar and threaten to either vacate the house or to pay Rs.50,000/- else will be implicated in the false case for murder of Kihsore Josua. It is further alleged that after release of the complainant opposite party no. 2 again a threat was made by the accused person to either vacate the house or execute a deed of surrender or pay Rs.50,000/- else will be falsely implicated and hence this complaint. In the said complaint the complainant and the witnesses have examined on oath and the impugned order passed issuing process after taking cognizance. 4. Learned counsel for the petitioners submits that this case has been filed by the complainant just to save 3 his skin with mala fide intention to wreak vengeance as the complainant his wife and brother are accused in Sessions Trial No. 236 of 2008. It has further been contended that the said sessions trial arises out of a complaint case filed by the petitioners regarding the death of Kishore Josua who was died in suspicious circumstance and on the said complaint the FIR was lodged under Section 156 (3) of the Cr.P.C bearing Bettiah P.S. Case No. 31 of 2007 and after lodging of the FIR the police after due investigation filed the charge- sheet and after considering the charge sheet the Magistrate took cognizance after due consideration of the material. It has further been contended that Bettiah P.S. Case No. 31 of 2007 has been filed in the year 2006 itself with regard to the occurrence dated 27.11.2006, whereas this complaint case has been filed on 3rd January, 2007 alleging that 16.12.2006, 25.12.2006 and 26.12.2006 illegal demand made as stated in complaint with thereat to falsely implicate and hence apparently this case has been filed mala fidely to pressurize the petitioners to not to pursue the complaint after filing of the complaint by Gladdy Josua, in which the petitioners are the prosecution party and hence there is ground for false implication with malicious intention and ulterior motive 4 to wreak vengeance for personal grudge as the petitioners were pursuing for investigation of the murder case and to pressurize the petitioners, the complaint has been filed against the petitioners. However, apparently the petitioners are the complainant in Complaint Case No. 2543 (C) of 2006 regarding the murder of Kishore Jousa, in which the complainant opposite party no. 2 is an accused along with his wife and brother. However, the complaint filed by the complainant in the year 2007 after the institution of the Complaint Case bearing no. 2543 (C) of 2006 and hence the complaint filed by the opposite party no. 2 appears to have been filed with mala fide intention to harass the petitioners with a malicious intention and ulterior motive to wreak vengeance and to pressurize the petitioners for personal grudge. 5. Since the complaint case was filed by these petitioners bearing no. 2543 (C) of 2006, regarding the death of Kishsore Jousa and on the basis of the complaint a FIR was lodged under Section 156 (3) and police after due investigation submitted the charge-sheet and on the basis of which the Magistrate took cognizance. Hence having regard to the fact that the case was investigated by police an 5 independent agency and the cognizance was taken by the Magistrate after due application of mind and hence the allegation is that the accused person threatened to pay Rs.50,000/- or leave the house and execute a deed of surrender else will be implicated in false case of murder of Kishore Josua becomes itself highly suspicious and with all human probabilities it is apparent that complaint was filed by the complainant to pressurize the accused so that he may not pursue the complaint when the murder of Kishore Josua took place on 27.11.2006 and the complaint filed by these petitioners on 26.12.2006 and the complaint is filed by the complainant opposite party no. 2 against these petitioners on 03.01.2007 bearing Complaint Case No. 7 (C) of 2007 apparently shows the complaint has been filed with ulterior motive to pressurize the petitioners so that he may not pursue the complaint. However, the subsequent events that the FIR under Section 156(3) on the basis of the complaint by the order of the Magistrate lodged and the police on investigation submitted the charge-sheet on the basis of which cognizance was taken case committed to court of sessions and the session trial is going on itself indicates and ruled out the allegation of a threat of false implication and 6 under the fact and circumstance it can well infer and come to an irresistible conclusion that this complaint has been filed with a malicious intention to wreak vengeance to pressurize the witnesses and prosecution party. However, the point may be raised and looked into in the session court and if it is found the case was lodged falsely then the course of law under Section 182 and 211 of the Indian Penal Code is still open. However, it appears that the learned Magistrate without due application of mind took cognizance without an intelligent inquiry and hence allowing the case to proceed under the fact and circumstance of the case is an abuse of the process of the court and hence the order taking cognizance as well as the criminal prosecution on the basis of the complaint is abused of the process of the court and hence is hereby quashed, hence the petition is allowed. Kundan (Gopal Prasad, J.)