Criminal Miscellaneous No.12538 OF 1998 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure. ---- 1. SYED ABDUS SATTAR @ SATTAR MIAN SON OF LATE SYED ABDUL GAFFAR. 2. ABDUL AZIZ SON OF LATE SYED ABDUL MAJEED 3. MD. FAIZI SON OF ABDUL AZIZ @ AJJU 4. SYED MD. KHALID SON OF LATE ABDUL WADOOD 5. SYED MD. SHAKIL SON OF LATE ABDUL WADOOD 6. ABDUL RAQUEEB SON OF LATE ABDUL LATIF. ALL RESIDENT OF VILLAGE- THOKRICHAK, P.S. BARAUNI, DISTRICT, BEGUSARAI. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. ASHIYANA KHATOON W/O MANZOOR ALAM, RESIDENT OF THAKRICHAK, RAJAURA, P.S. BARAUNI, DISTRICT, BEGUSARAI. ... ... OPPOSITE PARTY. ---- For the Petitioners : Mr. Abul Kalam,Advocate. 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. Six petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of the order of cognizance taken under Sections 395, 436, 149, 448, 452, 323/148 of the Indian Penal Code. The learned counsel for the petitioners has raised several grounds to assail the order of cognizance. 2. Before I proceed with the - 2 - submission of the learned counsel for the petitioners, it is necessary to indicate some fact of the case, which has been incorporated in the complaint petition. The complainant, in her complaint petition, had alleged that in the night of 17/18th of March, 1997, police party raided her house and arrested the husband of the complainant in a case. While the police party took away the husband of the complainant, it was alleged that six petitioners and other unknown persons entered into the house of the complainant and looted household articles and also threw some articles into a ditch near the house of the complainant. It was also alleged that the accused persons put on fire the dwelling thatched house of the complainant. After filing of the complaint, the complainant was examined on S.A. and some witnesses were examined to support the case of the complainant and thereafter the learned court had taken cognizance of the offences as aforesaid on the basis of materials available in the complaint petition as well as evidences brought on record by the complainant. In this case, before cognizance, altogether five witnesses were - 3 - examined in support of complainant’s case. 3. Learned counsel for the petitioners has firstly contended that the complainant’s case appears to be false on the face of the statement of the complainant, which was recorded on oath. In the complaint petition, date of occurrence was alleged as 17/18th March, 1997. However, in his S.A., she alleged that date of occurrence was 26.3.1997 and complaint was filed on 27.3.1997. He has further submitted that in S.A., the complainant gave a false statement regarding a proceeding instituted under Section 144 of the Cr.P.C. Though the proceeding under Section 144 of the Cr.P.C. was dropped, the complainant in her S.A. made a false statement that order in said proceeding was passed in her favour. Learned counsel for the petitioners has further submitted that the present complaint was filed maliciously and with a view to take revenge. He submits that the petitioner no.6 had filed a case against the husband of the complainant and in said case, husband of the complainant was arrested on the date of occurrence in the present case and as such, according to learned - 4 - counsel for the petitioners, the complaint was filed maliciously. 4. Learned counsel for the petitioners has further, by referring to Annexure-5 to the petition, argued that on 16.8.1979 even after examination of four witnesses, the learned Magistrate was not satisfied with the evidence and he had directed to bring on record some more evidence for proceeding further and ignoring this order, the court had passed the impugned order of cognizance. It was submitted that neither offence under Section 395 of the Indian Penal Code nor Section 436 of the Indian Penal Code is made out on the facts and circumstances of the present case. On the aforesaid grounds, learned counsel has prayed for quashing of the impugned order of cognizance. 5. Smt. Indu Bala Pandey, learned counsel appearing on behalf of the State, has vehemently opposed the prayer of the petitioner. She has firstly argued that the question regarding application of Sections 395 and 436 of the Indian Penal Code can be looked into at appropriate stage not at a preliminary - 5 - stage or initial stage like the present case. In the case, presently, the court had taken cognizance of the offence. Whether Sections 395 or 436 of the Indian Penal Code is applicable or not, that can be seen at different stages before the court below itself. The Code of Criminal Procedure is itself self contained and describes different stages for raising a grievance. Even at the stage of commitment, the committal court may examine whether offences are required to be committed or not. At the stage of charge also, it can be looked into whether offence is made out or not. Besides this, as per the provision contained in Section 216 of the Code of Criminal Procedure charges can be altered or amended at any stage. 6. I am of the view that these questions can be looked into at appropriate stage. So far as Annexure-5 is concerned, it is true that by order dated 16.8.1997, the court has asked the complainant to bring on record some more materials. It was indicated that out of four witnesses so far examined, three were family members of the complainant. Annexure-4/4 at page-30 makes it clear that after order - 6 - dated 16.8.1999, one witness, namely, Gopal Sah was examined on 18.9.1997 and as such it appears that after the examination of complainant witness, namely, Gopal Sah, the court was satisfied with the allegation and only thereafter, cognizance order was passed. The plea of the petitioners that the present complaint petition was filed maliciously and with a view to take revenge appears to be not sustainable. It is very easy to make an allegation of malafide but at the same time, it is difficult to prove the same. Moreover, this is not the stage for this court to examine those allegations. While exercising jurisdiction under Section 482 of the Cr.P.C., the court has got very limited jurisdiction. Time without number, it has been held that this power is to be exercised in exceptional and rarest of rare cases and, as such, at this stage that too, while exercising power under Section 482 of the Cr.P.C., I am not in a position to examine all these allegations, which has been made on behalf of the petitioners. 7. Accordingly, I do not find any - 7 - PATNA HIGH COURT Dated 22.3.2010 N.A.F.R./N.H. defect in the impugned order and as such petition is rejected. 8. In this case, on 2.9.1998, while issuing notice to opposite party no.2, this court had directed that in the meanwhile, further proceeding shall remain stayed. Subsequently, the petition was admitted and it was directed that during the pendency of this application, the interim order dated 2.9.1998 shall continue. 9. In view of rejection of this petition, interim order of stay stands vacated. 10. Let this order along with lower court record be communicated to the court below forthwith. ( Rakesh Kumar,J.)