CRIMINAL MISCELLANIOUS No.35251 OF 2006 In the matter of an application under section 482 of the Code of Criminal Procedure. HARIBANSH RAI, son of Late Ramfal Rai, resident of village – hargobindpur, P.S. Mahnar, District – Vaishali. ----------(Petitioner) Versus 1. STATE OF BIHAR 2. Surendra Rai, S/o – Ramrup Rai, resident of village Hargobindpur, P.S. Mahnar, District – Vaishali. 3. Sundari Devi, W/o – Surendra Rai, resident of village Hargobindpur, P.S. Mahnar, District – Vaishali. --------(Opposite Parties.) ****** For the petitioners : Shri S.K. Thakur, Adv. Shri Ranjit Kr. Thakur, Adv. For the State : Shri Ajay Mishra, APP. ****** P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ******* Akhilesh Chandra, J. Heard learned counsel for the petitioner, and learned Additional Public Prosecutor for the State. None appeared on behalf of opposite party nos. 2 and 3. 2. This is an application under section 482 of the Criminal Procedure Code seeking quashing of the order dated 04.02.2006 passed by Shri S.N. Shivhare, Judicial Magistrate, 1st Class, Vaishali, in Complaint Case No. 1850/2002/Tr. No. 1651/2002, taking cognizance for the offences under section 323, 147, 435, 452 and 380 of the Indian Penal Code. 3. The Complaint Case bearing no. 1850/2002 was filed on 07.08.2002 by complainant opposite party no.2 against petitioner and ten others (non-petitioners) stating that just two days before on 05.08.2002 at 3 P.M. while the complainant was - 2 - inside in his house, the accused persons including the petitioner in collusion with each other arrived started assaulting him by slaps and fists and petitioner being accused no.1 took Box kept inside when complainant protested, he again assaulted by others. The miscreants took away with the Box containing different articles worth Rs. 15,000/- and at the dictates of accused no.2 accused no.5 and 6 put the hut etc. under fire causing loss of grains and other articles kept therein. The reason behind the occurrence as stated is that on the same day in the morning the accused persons have assaulted wife and son of the complainant, for which, his wife had lodged a case before the police and the accused persons were persuading to withdraw the said case and finding the police in collusion with accused person he did not go there. 4. Copy of police case lodged at the instance of wife of the complainant opposite party no.2 is with the record of this case as Annexure – 2. As it appears Mahnar P.S. Case No. 96/2002 was instituted on 06.08.2002 and fardbeyan was recorded on 9 A.M. on 06.08.2002 and from the fardbeyan of opposite party no.3 i.e. wife of the complainant, it appears that in the morning at 05.08.2002 at about 7 A.M. She alone was abused and assaulted by slaps and fists and one of the accused Bhagwan Lal Rai, put the hut of the informant under fire. Occurrence was seen by the villagers who made attempts to settle the disputes between the parties, due to the same she - 3 - could not report the police on the day of occurrence. 5. Learned counsel for the petitioner submitted that there were two cases for one occurrence and the police after investigation in Mahnar P.S. Case No. 96/2002 submitted final form stating the statement of fact. No protest petition has been filed against findings of the police. The relevant paper by way of final form is with the record as Annexure – 3. 6. Learned Additional Public Prosecutor tried to led emphasis that the cases were with respect to two different occurrences and no interference is required. 7. It would not be out of place to mention that the alleged occurrences took place on 05.08.2002 and with respect to the occurrence said to have been taken place in the morning at 7 A.M. in Mahnar P.S. Case No. 96/2002 was instituted on 06.08.2002 i.e. next day. Police was informed at about 9 A.M. whereas in the Complaint Case No. 1850/2002, the occurrence said to have been taken place at 3 P.M. on the same day 05.08.2002 and as stated only case of institution of the police case at the instance of wife of the complainant. But, as it appears from Annexure – 3, at least by the time of occurrence said to have been taken place giving rise to filing of complaint on 07.08.2002. Police was not at all informed about the occurrence taking place in the morning, so, no case was instituted, as said to have been the very genesis for subsequent occurrence taking place on the same day. - 4 - 8. It is also to be noticed that in both the informations first to the police subsequent to the court by different means such as by recording fardbeyan of opposite party no. 3 and filing complaint by opposite party no.2. Hut belonging to the complainant/informant was put under fire by same person Bhagwan Lal Rai. I fail to appreciate such allegation with respect to same hut at two times on the same day. However, when very basis of subsequent occurrence giving rise to complaint was not in existence. Moreover, the complainant opposite party no.2 as alleged avoided going to police, finding in collusion with accused person and his wife able to get the case lodged. The allegation levelled in the complaint appears to be absurd and improbable. 9. Thus finding this case squarely covered more than one criterias prescribed by the Apex Court in the case of State of Haryana & others v. Choudhary Bhajan Lal and others reported in A.I.R. 1992 SCC 604. 10. The impugned order to the extent of petitioner is hereby quashed and application stands allowed at the stage of admission itself. Patna High Court Date : The 10th of August 2010 Rajeev/ (Akhilesh Chandra, J.)