CRIMINAL MISCELLANEOUS No.9082 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure ----------- 1. ARUN KUMAR DWIVEDI , Son of Sri Kamla Prasad Dubey, resident of Village- Upadhyay Bigha, P.S. Mehandia in the district of Jehanabad, presently posted as Sub-Inspector of Police at Aurangabad Police Line in the town and District of Aurangabad 2. Mukeshwar Prasad, Son of Sri Dayal Prasad, resident of Village- Matokhar, P.S. Shekhpura in the district of Shekhpura, presently posted as Officer Incharge, Durgawati Police Station in the district of Kaimur ( Bhabhua) ------------ Petitioners. Versus 1. THE STATE OF BIHAR 2. Ram Dinesh Rai, Son of Sri Mahadhan Rai, resident of Village- Bagar, Police Station Sikarahata in the district of Bhojpur ---------------------- Opp.Parties. -------------- For the petitioners: Sri Akhileshwar Pd. Singh, Advocate For the State: Smt. Indu Bala Pandey, A.P.P. For Opp.Party no.2: None. ------------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Two petitioners, who are the Police Officers , have come before this Court with a prayer to quash an order dated 29th January,1998 passed by the learned Judicial Magistrate, 1st Class, Arrah in Complaint Case No. 527 ( C) of 1996, Tr.No.789 of 2000. By the said order, the learned Magistrate has taken cognizance of offences under Sections 166, 323, 395 & 504 of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2 on 17.7.1996 filed a complaint in the court of the learned Chief Judicial Magistrate, Bhojpur at Arrah , which was registered as Complaint Case No.527 ( C) of 1996 for the 2 offences under Sections 166,395 and 504 of the Indian Penal Code. After filing of the complaint petition, the complainant was examined on S.A. and in support of the complaint case, six enquiry witnesses were examined, who supported the allegations made in complaint case and thereafter the learned Magistrate has taken cognizance of offences. It was alleged in the complaint petition that the petitioners on the date of occurrence, i.e. on 13.7.1996 in the morning at about 7.00 A.M. forcibly intruded into the house of the complainant and they looted several house-hold articles of the complainant. The list of looted articles was mentioned at the foot of the complaint petition. According to the complainant, the amount of looted articles was Rs.83,250/-. 3. Sri Akhileshwar Prasad Singh, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance as well as entire proceeding in Complaint Case No.527 (C) of 1996, at the very outset submits that the order of cognizance as well as entire proceeding is liable to be set aside on the ground that the same was filed with oblique motive and maliciously. Learned counsel for the petitioners has referred to Annexures 2 and 3 to the petition, which are typed copies of the F.I.R. of Sikrahata P.S. Case No.32 of 1996 dated 13.7.1996 registered under Sections 25(1-B)(A) /26/ 35 of the Arms Act and Sikrahata P.S. Case No.33 of 1996 dated 13.7.1996 registered under Sections 467,468,471,472,484,485, 420 of the Indian Penal Code against the complainant. In Sikrahata P.S. Case No.32 of 1996, besides the complainant, his son Manoj Kumar Rai was also made one of the accused. It was submitted that after getting information that members of “Ranveer Sena”, which was a prohibited organization, had assembled in the house of 3 the complainant, a raid was conducted in the house of the complainant in the morning of 13.7.1996. During the course of raid, huge quantity of cartridges, even cartridges , which were to be used in S.L.R. , were recovered from the house of the complainant and accordingly, an F.I.R. vide Sikrahata P.S. Case No.32 of 1996 was registered. In the same search, from the house of the complainant, number of fake seals in the name of District Magistrate and other officials were recovered. The seals were in relation to preparation of fake arms licences .Some uniforms of “Ranveer Sena” were also recovered from the house of the complainant and , as such, another F.I.R. i.e. Sikrahata P.S. Case No.33 of 1996 was registered for offences under Sections 467,468,471,472,484,485, 420 of the Indian Penal Code . It was further submitted that in both the cases, the complainant was chargesheeted by the police. It was submitted that petitioner no.1 was at the relevant time Officer Incharge of Sikrahata Police Station and petitioner no.2 was posted as Sub-Inspector of Police in the same Police Station. On the aforesaid facts, it was submitted that the complaint petition was filed maliciously by the complainant after being made an accused in two cases for serious offences. On the ground of malicious prosecution, it has been prayed that the order of cognizance as well as entire proceeding in Complaint Case No.527 ( C ) of 1996 is liable to be set aside. 4. Smt. Indu Bala Pandey, learned Addl.Public Prosecutor has appeared on behalf of the State. 5. In this case on 11.9.2000, notice was ordered to be issued to Opp.Party no.2 and thereafter repeatedly notices were issued to Opp.Party no.2, but it was never served and due to that reason the petitioner was directed to take steps for issuance of substituted service of notice and 4 thereafter it was published in the Newspaper. Despite substituted service of notice, Opp.Party no.2 has chosen not to appear before this Court. 6. In view of the facts and circumstances, as indicated above, the Court is of the view that the order of cognizance as well as entire proceeding in Complaint Case No.527 (C) of 1996 is liable to be set aside on the ground of malicious prosecution and, as such, order dated 29.1.1998 passed by the learned Judicial Magistrate, 1st Class, Arrah in Complaint Case No. 527 (C) of 1996, Tr.No.789 of 2000 is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 20th August,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)