IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54637 of 2007 SUBODH KUMAR, Son of Late Dineshwar Pd. Singh, Village-Ganti, P.S. Belaganj, District-Gaya at present posted as S.I. Special Task Force, Old Secretariat, Patna..........................................................................Petitioner. Versus 1. The State of Bihar. 2. Champa Devi, wife of Late Bramahadeo Mahto, Vilage-Sarai Dhanesh P.S. (Sahdei), District-Vaishali at Hajipur................Opposite Parties. ----------- For the Petitioner: Mr. Ramakant Sharma, Senior Advocate and Mr. L. K. Sharma, Advocate. For O.P.No.2 : M/S.. Naresh Chandra Verma & Arun Kumar Lal, Advocates. For the State : Mr. Rajesh Kumar, A.P.P. ----------- 3. 02.04.2010. The present application has been filed on behalf of the petitioner challenging the order dated 17.01.2006 whereby the cognizance has been taken in complaint case no. 2186 of 2005 by the learned Judicial Magistrate, Ist Class, Vaishali at Hajipur under Sections 379, 147, 323 and 504 of the Indian Penal Code. Initially on 07.03.2008 notice was issued to opposite party no.2 and further proceeding in complaint case no. 2186 of 2005 pending in the court of Judicial Magistrate, Ist Class, Vaishali at Hajipur was stayed by this Court. In pursuance to the issuance of notice, opposite party no.2 has appeared. Heard learned counsel for the petitioner, opposite party no.2 and the 2 State. It is alleged in the complaint by the complainant, Champa Devi, that on 01.08.2005 at 9.30 A.M. the petitioner who happens to be a police officer alongwith other officers entered into the house and took away cash, Jewellery and Bicycle loaded with the some articles and thereby has exceeded in jurisdiction and committed the offence. On enquiry and the examination of the complainant on S.A. and the witnesses evidence the learned Judicial Magistrate, Ist Class, Vaishali at Hajipur, took cognizance vide order dated 17.01.2006 under Sections 379, 147, 323 and 504 of the Indian Penal Code which is under challenged in the present proceeding. Learned counsel for the petitioner submitted that in fact the petitioner was Sub Inspector of Deshri, Sahdai O.P. police station and prior to the present complaint, Deshari Sahdai O.P. Police Station Case No. 114 of 2005 under Sections 341,307, 504,286/34 of the Indian Penal Code and Section 27 of the Arms Act as well as under Explosive Substance Act was lodged on 31.07.2005 in which the complainant’s 3 husband, Brahamdeo Mahto and her two sons, namely, Dinesh Singh and Awadhesh Singh were made accused and during course of investigation, Brahmadeo Mahto, died hence the charge sheet was submitted vide Charge Sheet No. 20 of 2006 on 17.04.2006 under Sections 341, 307,504, 286/34 of the Indian Penal Code and Section 27 of the Arms Act against two sons of the complainant, namely, Dinesh Singh and Awadhesh Singh. Since the petitioner was I.O. of the aforesaid police case and made seizure also including old bicycle with loaded grocery items hence as a retaliatory measure the present case has been filed with a frivolous allegation on 03.08.2005. Learned counsel for the petitioner further submitted that pendency of the Deshari (Sahdai O.P.)police Station Case No.114 of 2005 and the petitioner being I.O. of the said case has deliberately been suppressed and by misusing the process of the court, the present case has been lodged which is an abuse of the process of the court. Learned counsel for the petitioner also submitted that police case was lodged on 31.07.2005 whereas complaint case was lodged 4 on 03.08.2005 i.e., after three days of the occurrence. In this connection, learned counsel for the petitioner cited the Bhajan Lal’s case reported in 1992 supplementary S.C.C. 335(State of Haryana & Ors. Vs. Bhajan Lal & Ors.) in which it has been envisaged that when the malicious case has been filed for wreaking vengeance with an ulterior motive then such prosecution deserves to be quashed, as such, the present prosecution case also deserves to be quashed since it has maliciously been filed for wreaking vengeance. Learned counsel for opposite party no.2 has submitted that prima facie allegations are alleged in the complaint case which has been supported by the complainant and the witnesses hence this Court requires no interference in the cognizance order. Learned Counsel for the State has also supported the contention of the learned counsel for opposite party no.2. Perused the complaint petition as well as the charge sheet of the police case contained in Annexure-2, it appears that the husband of the complainant and two sons were accused and her two sons were charge sheeted 5 and the police case was lodged on 31.07.2005 whereas the present complaint case was lodged on 03.08.2005 hence it appears that sheer as retaliatory measure the present case has been filed hence on two scores the delay in lodging complaint as the occurrence took place on 01.08.2005 whereas the complaint was filed on 03.08.2005 as well as prima facie appears to be a retaliatory measure complaint, I do hereby quash the order of cognizance dated 17.01.2006 passed in complaint case no. 2186 of 2005 passed by the learned Judicial Magistrate, Ist Class, Vaishali at Hazjipur so far as the petitioner is concerned. This application is, accordingly, allowed. U.K. (Dinesh Kumar Singh,J)