CRIMINAL MISCELLANEOUS No.10747 OF 2003 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- RAJ KUMAR PANDEY SON OF LATE RAM NARAIN PANDEY, RESIDENT OF VILLAGE GODIHA, P.LS. KUTUMBA (AMBA) IN THE DISTRICT OF AURANGABAD. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. SHMBHU PANDEY S/O CHANDRABHAN PANDEY 3. BINAY PANDEY 4. BHAGWAN PANDEY 5. SUBOTH PANDEY 6. DEVENDRA PANDEY SONS OF SHAMBHU PANDEY, RESIDENT OF VILLAGE GODIHA, P.S. AMBA, DISTRICT AURANGABAD. ---- For the Petitioner : Mr. Ashok Kumar Singh, Adv. 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. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 21.1.2003 passed by Shri S.K. Pandey, Judicial Magistrate, Ist Class, Aurangabad in G.O.74 of 1995/Tr. No.29 of 2003, whereby the learned Magistrate has rejected the discharge petition. In this case, at the stage of charge, petition was filed on behalf of the petitioner for his discharge. However, the learned Magistrate, 2 by the impugned order, has rejected the discharge petition. 2. Short fact of the case is that on the basis of fardbeyan of the petitioner in the year 1995, an F.I.R. vide Kutumba P.S. Case No.80 of 1995 was registered on 3.9.1995 for the offence under Sections 147, 148, 149, 448, 380 and 323 of the Indian Penal Code against eight named accused persons. After registering F.I.R., police started investigation. However, during investigation, the police found the allegation made by the petitioner in the F.I.R. as un-true and as such on 12.10.1995, a final report was submitted by the police indicating the case as un-true. On the same date, a prosecution report was filed for prosecuting the petitioner for the offence under Sections 182 and 211 of the Indian Penal Code. After filing of prosecution report, the learned Magistrate took cognizance of offence. At the stage of charge, the petitioner filed a petition for discharge which was rejected by order dated 21.1.2003 passed by Sri S.K. Pandey, Judicial Magistrate, Ist Class, Aurangabad. 3 3. Aggrieved with the order of rejection of discharge petition dated 21.1.2003 passed by Shri S.K. Pandey, Judicial Magistrate, Ist Class, Aurangabad, the petitioner approached this Court by filing the present petition. On 16.5.2006, the case was admitted for hearing. While admitting, it was directed that the interim order dated 19.11.2003 shall continue and order of stay is still continuing. 4. Shri Ashok Kumar Singh, learned counsel appearing on behalf of the petitioner, while challenging the order of rejection of discharge petition, submits that the learned Magistrate, while passing the impugned order, completely failed to appreciate that after filing of the final report and prosecution report, the petitioner had filed a protest petition, which was treated as complaint. However, the complaint petition was rejected after conducting enquiry on 2.8.1997 by the learned Magistrate. The petitioner, aggrieved with the rejection of complaint petition under Section 203 of the Code of Criminal Procedure, preferred a revision vide Cr. 4 Revision No.77 of 1997 before the court of learned District and Sessions Judge. Learned counsel for the petitioner has referred to Annexure-4 to the petition, which is a copy of order passed by the learned Additional District and Sessions Judge-III in Cr. Revision No.77 of 1997 on 12.3.1993. By the said order, the revision preferred by the petitioner was allowed and the learned 3rd Additional Sessions Judge directed the trial court to hear the matter again. After the order of revisional court, the learned Magistrate, on 17.3.1999, took cognizance of offence in Complaint Case No.673 of 1996/858 of 1997, which was preferred by the petitioner. Learned counsel for the petitioner has further submitted that after cognizance, charges were also framed against six accused persons on 8th July,2002. Learned counsel for the petitioner has brought on record copy of charges framed against accused persons as Annexure-5 to the petition. It was submitted by Shri Singh that since on the protest-cum-complaint petition filed by the petitioner, trial has already been initiated against the accused persons, who were made 5 accused in the F.I.R., which was lodged on the fardbeyan of the petitioner, the learned Magistrate was not at all entitled to proceed with the prosecution of the petitioner for the offence under Sections 182 and 211 of the Indian Penal Code. It was submitted that since prima facie allegation made by the petitioner in Kutumba P.S. Case No.80 of 1995 has been found true in the protest-cum- complaint petition preferred by the petitioner, no offence can be made out against the petitioner under Sections 182 and 211 of the Indian Penal Code. Accordingly, it has been prayed to set aside the entire proceeding in G.O.74 of 1995/Tr. No.29 of 2003 pending before the Judicial Magistrate, Ist Class, Aurangabad. 5. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appears on behalf of the State, who has opposed the prayer of the petitioner. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Once the protest petition was treated as complaint petition, which was filed by the petitioner 6 and in that case, learned Magistrate has already proceeded with the trial against the accused persons, who were made accused in the F.I.R., which was lodged by the petitioner, there is no point to proceed with the allegation of commission of offence under Sections 182 and 211 of the Indian Penal Code. The proceeding against the petitioner in G.O.74 of 1995/Tr.No.29 of 2003 is apparently abuse of the process of the court and as such with a view to prevent the abuse of the process of the court, it is necessary to interfere with the impugned order as well as entire proceeding. 7. Accordingly, entire proceeding in G.O.74 of 1995/Tr. No.29 of 2003 pending in the court of Judicial Magistrate, Ist Class, Aurangabad is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 7.9.2010 N.A.F.R./N.H.