1 IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51264 of 2007 1. GIRENDRA KUMAR 2. ANIL KUMAR, BOTH SONS OF LATE SUKHDEO MAHTO, RESIDENT OF VILLAGE PANDITPUR, P.S. RAJGIR, DISTRICT-NALANDA. --PETITIONERS Versus 1. THE STATE OF BIHAR 2. AMRESH KUMAR HANSH SON OF LATE RAMNANDAN PRASAD, RESIDENT OF VILLAGE-MANARA, P.S NOORSARAI, DISTRICT-NALANDA. --OPPOSITE PARTY For the Petitioners : M/s Ashwini Kr.Singh & Pankaj Kr. Singh For Opp.party no.2 : Mr. Vivek Kumar For the State : Mr. Ajoy Mishra, APP 3 07.04.2010 Heard learned counsel for the petitioners, opposite party no.2 and the State. This application has been filed under Section 482 of the Code of Criminal Procedure seeking quashing of the order dated 06th August, 2007 passed by Sri Manoj Kumar Rai, Judicial Magistrate, 1st class, Biharsharief (Nalanda) framing charges against the petitioners for the offence under Sections 323, 379, 420/34 of the Indian Penal Code in Complaint Case no.166 © of 2004. Learned counsel for the petitioners drew my 2 attention towards the fact that complaint petition was filed before the Court of Chief Judicial Magistrate, Biharsharief and after enquiry cognizance was taken and after taking evidence before judge charges were ordered to be framed but complaint petition carries allegations which are of civil nature only. Complainant has alleged in the complaint petition that there was an agreement between him and accused persons to sale a piece of land at the rate of Rs.34,000/- per decimal on 24th September, 2002 and, accordingly, agreement was reduced in writing in presence of accused no.2 and accused no.1, being full brother, was signatory of the agreement. A sum of Rs.10,000/- was paid in advance. The land described is 4 decimal of plot no.1180, Khata no.05, area 0.4 decimal in village Panditpur, adjacent west to bye-pass road. Bounded as North-rasta, South- Pagdandi of a field, East- Bihar Rajgir Bye-pass road, West- remaining portion of the plot. But, inspite of repeated request the accused persons failed to carry their part of agreement and subsequently on 15th February, 2004, that is, roughly one and half years after the agreement, abused, assaulted and also took away Rs.1,000/- from the pocket of the complainant. It is also alleged that execution of the deed was avoided on the ground of 3 water logging in the field but there is nothing like this and, ultimately, it was refused. Police was informed but no action was taken. Subsequently complaint was filed. From the very complaint petition it appears that it has been filed just on the ground of alleged non-performance of the agreement by the accused persons. My attention was further drawn towards the statement of witnesses wherein date of alleged occurrence of alleged abuse, assault etc. have been advanced for a week. In the complaint petition it is dated 15th February, 2004 whereas the witnesses has stated as 22nd February, 2004. Further it is submitted that in the agreement there was a time limit for payment of remaining consideration amount but the complainant failed to perform his part and make payment within the stipulated time and much after the expiry he has filed this complaint petition with flimsy allegations, just to pursue the said agreement in a short cut route to screen his non-performance. Learned counsel has placed reliance upon the decision of the Apex Court in the Case of State of Haryana V. Bhajan Lal, 1992 Supp (1) SCC 335 wherein altogether following seven yardsticks have been prescribed to scrutinize the cases for the purpose of their continuity etc. The prescribed tests are: (1) Where the allegations made in the first 4 information report or the complaint, even if they are taken at their face value and accepted in their entirety do no prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizance offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. 5 (7) Where a criminal proceeding is manifestly attended with mala fide and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Another case whereupon reliance has been placed by the learned counsel for the petitioners is Murari Lal Gupta V. Gopi Singh, (2005)13 SCC 699. The instant case is well covered in the yardstick framed by the Apex Court and by mere saying in the complaint petition about cheating etc., no such offence is made out. As stated earlier, this case is outright a case of civil nature and allegation with regard to the abuse of process of law appears to have been made only for other purposes. This is why there is variation in the alleged deeds. If such criminal cases are permitted to continue, it shall be abuse of process of law. Accordingly, the application stands allowed. The entire proceeding in the court below, which was stayed earlier by this Court, is hereby quashed. (Akhilesh Chandra, J.) AAhmad