IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13047 of 2009 1. MUKESH KUMAR, SON OF BIJAY SHARMA. 2. BIJAY SHARMA, SON OF RAM PRAVESH SHARMA @ BAKHAURI SING. BOTH RESIDENT OF VILLAGE-SIKARIYA, P.S.-PARASBIGHA, DISTRICT-JEHANABAD. 3. GUDDU KUMAR @ GUDDU SHARMA, SON OF KAMLESH SHARMA. 4. NIRAJ KUMAR SON OF RAMESH SHARMA. BOTH RESIDENT OF VILLAGE-GINJI, P.S.-GHOSI, DISTRICT- JEHANABAD. 5. SANJIV KUMAR @ PAPPU KUMAR, SON OF RAM CHANDRA SINGH, RESIDENT OF VILLAGE-BHELAWAR, P.S.-KAKO (BHELAWAR O.P.), DISTRICT-JEHANABAD. …..PETITIONERS VERSUS 1) STATE OF BIHAR. 2) GAUTAM KUMAR, SON OF ANIRUDHA SHARMA, RESIDENT OF VILLAGE-CHAINPUR, P.S.-PARASBIGHA, DISTRICT- JEHANABAD. …Opposite Parties. ----------- For the petitioners : Mr. Sachhida Nand Chaudhary. Mr. Amar Nath Singh. Mr. Mukesh Kumar Jha. Advocates For Opp. Parties : Mr. Ram Kumar Singh, Advocate. For the State : Damodar Prasad Tiwary, A.P.P. Indu Kumari Shrivastava, A.P.P. ________ 6 04.01.2011 Heard. This is petition for quashing the order dated 25.10.2008 passed by C.J.M., Jehanabad in G.R. No.370/2008 arising out of Jehanabad P.S. Case No.76/2008 by which the summons has been issued against the accused persons after taking cognizance for offence under Section 323, 342 and 465. The prosecution case as alleged in the fardbeyan by the informant that his sister Remi Kumari has been kidnapped by Mukesh Kumar while about one and half month back. On 2 13.3.2008 while the victim complainant was returning from court then black scorpio came and one Guddu Sharma open the gate wrongfully restrained in the case took him in Car at the point of pistol. The said sister Remi Kumari was also in the car. The accused person kept the informant in confinement in car and took him to Patna near Gandhi Maidan got his signature on plain paper and assaulted him brutally and got his photograph at Payal Studio in S.P. Verma road and dropped the informant. However, the police lodged FIR and after investigation the final form was submitted as found the case untrue. However, the learned Magistrate after taking into consideration the case diary and the final report and finding the material in para 13 and 14 of the case diary supported the case of the prosecution took cognizance for offence under Section 323, 342 and 465 of the Indian Penal Code and issue process. The learned counsel for the petitioner however submit that the petitioner has been falsely implicated and challenged the impugned order on the ground that the allegation made does not make out an offence. The story alleged in the complaint petition is absurd and inherently improbable and prosecution case has been filed malafidely and allowing the prosecution to continue is an abuse of the process of the court. Hence relying on T.T. Anthony case A.I.R. 2001 SC and particularly the condition no.1,5, 7 of the seven condition mentioned in Bhajan Lal Case reported in A.I.R. 1992 SC 604 it is submitted that the case is required to be quashed. It has further been submitted that the father, mother and the cousin 3 brother of the Remi Kumari had filed three cases against the accused persons with regard to the kidnapping of Remi Kumari by the accused persons. The two cases filed for kidnapping of Remi Kumari one by the mother and other filed by the father of Rema Kumari has already been quashed by the Hon’ble High Court, and hence contend that this case has been filed by the cousin brother of Rema Kumari and hence submit that what has been referred by the learned magistrate while taking cognizance in the para 13 and 14 of the case diary are not based on legal evidence and they are the hearsay and the learned magistrate has not given any cogent reason differing with the police report while taking cognizance of the offence. The learned counsel for the State however contend that the allegation make out in the complaint case specifically make out a offence and even the learned magistrate has referred to the para 13 and 14 of the case diary observing material in these para which prima facie make out an offence and at the stage of taking cognizance it is the opinion of the Magistrate which shall prevail and the allegation made about the assault and kidnapping is neither improbable nor can be said to be malicious and the defence of the accused person can not be looked into at this stage but can only be confined at the trial.. However, taking into consideration the allegation there is specific allegation in the complainant that complainant was wrongfully restrained in car at point of pistol and was taken to Gandhi Maindan, Patna and was assaulted and after taking his 4 signature on plain paper dropped and hence allegations made at the face value of the complaint is taken to be true itself make out an offence. The allegation made itself is not as such to be quite absence or so improbable that it cannot be believed. However, it is stated that the Rema Kumari who is alleged to have been in car while the victim was wrongfully restrained in the car has not supported the case of prosecution but there is reason for the same. It has further been submitted that the father and mother has filed a case of kidnapping against the accused persons. In those cases of kidnapping the criminal prosecution was quashed by the Hon’ble High Court. However, those cases were filed alleging kidnapping of Rema but Rema appeared before the Hon’ble High Court in Cr. Misc. No.13679 of 2009 and stated that she has married with accused with her own sweet will and she was entitled to do so since she was major on the date of occurrence and in that view of the matter criminal prosecution was quashed. Whereas in case at hand the case is of wrongful restrain at the point of pistol and then took him to Patna in car and left thereafter assaulted taking his signature and the complainant has supported the case of wrongful restraint and assault and hence case of petitioner is apparently on different footing than the case filed by Rema Kumari. However, when allegation made makes out an offence and is neither absurd nor improbable and witness supported the case then the malafide alleged becomes secondary and in this regard the observation made by Mr. Justice Bhagwati the then C.J. of India in 1987(1) SCC 288 (Sheo Nandan Paswan Vrs. State of 5 Bihar) is which is taken into consideration in decision reported in AIR 1992 SC 604 Bhajan Lal Case at page 114. “It is well established principle of law that a criminal prosecution if otherwise justifiable and based on adequate evidence does not become vitiate on account of malafide and political vendetta of the informant or the complainant”. However, it is not proper to embark at this stage on merit. Learned counsel for the petitioner however contend that in para 13 and 14 of the case diary the material are not as such which can be said to be a sufficient ground for proceeding. However, since at the stage of taking cognizance and issuing process learned magistrate only require to see prima facie weather allegation made makes out an offence and it is opinion of the magistrate which shall prevail however having regard to the fact that allegation made as discussed above make out an offence and is not as such that no prudent person cannot believed it and the malafide alleged is question of fact can well be tested at the trial. Hence I am not inclined to interfere with the impugned order at this stage however the petitioner it no desire may raise the issue at the stage of framing of charge. PN ( Gopal Prasad,J.)