Criminal Miscellaneous No.28756 OF 1998 In the matter of an application under Section 482 of the Code of Criminal Procedure ----------- OM PRAKASH TIWARY, Son of Baristar Tiwary, resident of Bright Land No.1, Haider Ali Road, Kokar, P.S. Sadar, District Ranchi -- Petitioner Versus 1. RAS BIHARI KUMAR Son of Bandan Sahu, resident of Village-Mauzi, P.S. Hasanpur, District-Samastipur 2. The State of Bihar --- Opp.Parties. --------- For the petitioner: None For Opp.Party no.2: None For the State: Mr. Chandrasen Pd.Singh, A.P.P. ------------ P R E S E N T THE HON'BLE SHRI JUSTICE RAKESH KUMAR Rakesh Kumar,J No one appears either on behalf of the petitioner or Opp.Party no.2. However, Sri Chandrasen Pd.Singh , learned Addl.Public Prosecutor is present. 2. The sole petitioner has challenged the order dated 13.10.1998 passed in Complaint Case No.167 of 1998. By the said order, Sri Kanta Prasad, Judicial Magistrate, Rosera had taken cognizance for offences under Sections 147,149,320, 363 and 458 of the Indian Penal Code and ordered for issuance of processes against the accused persons. 3. Opp.Party no.2 had filed a Complaint case vide Complaint Case No.167 of 1998 disclosing therein that while he was studying at Ranchi , he was residing as a tenant in the house of one Baristar Tiwary, father of the petitioner. During the period of his tenancy, he developed love affairs with the sister of the petitioner and, thereafter he got his marriage solemnized under the Special Marriage Act and he came along with his alleged wife to his village-Hasanpur, Samastipur. It was alleged that some police personnel along with this petitioner and other reached the village of the complainant and by way of breaking the door forcibly took away the wife of the complainant. On these allegations, the complainant filed complaint petition and after examination of the complainant on S.A. and four witnesses , the learned Magistrate vide his order dated 13.10.1998 took cognizance for the offences as mentioned above and directed for issuance of processes for securing appearance of accused persons. 4. On perusal of the petition, it appears that during initial stage of enquiry, the learned Magistrate was not satisfied with the accusation made in the complaint petition and, thereafter, vide letter No.62 dated 11.8.1998 the learned Magistrate asked the Superintendent of Police, Samastipur to get the complaint petition verified and inquired. From Annexure-2 to the petition, it is evident that the Superintendent of Police asked the Officer Incharge of Hasanpur Police Station to conduct an enquiry and submit a report. It has been alleged in the present petition that without waiting for the report of the police, the learned Magistrate again proceeded with the complaint and further examined some witnesses and by the impugned order, the learned Magistrate had taken cognizance for the offences as mentioned. From Annexure-3 to the petition , it is evident that the learned Magistrate was intimated that as per the direction of the Superintendent of Police, Ranchi and other police officials , action was taken for getting the victim girl recovered and discharging the official duty , recovery of the girl could be secured. 5. Prima facie, I am of the view, after perusal of the contents of the complaint petition, that allegation made in the complaint petition appears to be false and not believable. Moreover, the learned Magistrate after asking the police officer to conduct the enquiry was not required to further proceed with the complaint petition without receipt of the report from the police officials and, as such, the learned Magistrate has committed a grave error in passing the impugned order of cognizance dated 13.10.1998. The order of cognizance on the basis of such a complaint is liable to be set aside. 6. In view of the facts and circumstances mentioned herein above, I am of the view that allowing the proceeding in complaint case i.e. Complaint Case No.167 of 1998 to further proceed will amount to abuse of the process of the Court .Accordingly, the impugned order of cognizance is set aside so far it relates to the petitioner. Accordingly, the petition stands allowed. Patna High Court, Patna Dated : the 31st March,2010 Nawal Kishore Singh/N.A.F.R (Rakesh Kumar, J)