CRIMINAL MISCELLANEOUS No.12585 OF 2003 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. -------- 1.AMEE RANJAN S/o late Raj Mangal Prasad R/o P.H.E.D. Colony, Begusarai 2.Keslay Ranjan @ Baua Guddu S/o Amee Ranjan R/o Sukla Colony, Ganpati Apartment, Hinoo, Ranchi …… …….. Petitioners Versus 1.STATE OF BIHAR 2.Sanjay Kumar Singh S/o Lakshmi Singh R/o Lodhipur, Sahpur, P.S.-Mufassil, Dist.-Begusarai …… ……Opp. Parties. ------- For the petitioners: Mr. B.P.Pandey, Sr. Advocate Mr.S.C.Giri, Advocate Mr.P.K.Sinha, Advocate For Opp.Party No.2: Dr. Kumar Binod Bariar Mr.Pramod Manbansh For the State: Mrs. Indu Bala Pandey, Addl.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. The petitioner no.1, who, at the relevant time, was Executive Engineer in the Public Health Engineering Department, Government of Bihar, Begusarai and his son, who is petitioner no.2, have approached this court by filing the present petition under section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 20.2.003 passed by Sub.Divisional Judicial Magistrate, Begusarai in Complaint Case No.1452C of 2002, T.R. No.1662 of 2003. By the said order the learned Magistrate has taken cognizance of the offences under sections 323, 504 and 379 of the Indian Penal Code. 2. Short fact of the case is that opposite party 2 no.2 filed a complaint in the court of Chief Judicial Magistrate, Begusari which was numbered as Complaint Case No.1452C of 2002 against petitioner no.1, petitioner no.2, who is son of petitioner no.1, wife of petitioner no.1 and daughter Neha Kumari, on the allegation of commission of offences under sections 323, 147, 379 and 504 of the Indian Penal Code. It was disclosed in the complaint petition that on the date of occurrence i.e. 24.10.2002 in the morning while the complainant was going to purchase some medicine, he met with petitioner no.1, who was Engineer of his department. On the request of petitioner no.1, the complainant along with him went to his house where he asked the complainant as to why he had filed a complaint against him before the Collector. The complainant gave clarification. However, petitioner no.1 was not satisfied and, thereafter, petitioner no.1 along with his all family members started assaulting the complainant. It was alleged that in the said occurrence accused no.3, who is petitioner no.2 before this court forcibly took Rs.250/- from the pocket of the complainant. On the aforesaid allegation the complaint was filed and, thereafter, the complainant was examined on solemn affirmation. Three witnesses, who were examined during the enquiry, have supported the case of the complainant and, thereafter, by the impugned order the learned Magistrate has taken cognizance of offences as mentioned above. 3. Aggrieved with the order of cognizance, the petitioners have approached this court by filing the present 3 petition. 4. On 31.3.2004 while issuing notice to opposite party no.2, this court directed that in the meantime further proceedings in Complaint Case No.1452C of 2002, Tr. No.1662 of 2003 pending in the court of Sub.Divisional Judicial Magistrate, Begusarai shall remain stayed. At the time of admission itself opposite party no.2 appeared through Advocate and thereafter on 30.8.2004 the case was admitted for hearing. 5. Mr.B.P.Pandey, learned senior counsel appearing on behalf of the petitioners, while challenging the order of cognizance as well as initiation of the proceeding on the basis of the complaint filed by opposite party no.2, at the very outset has submitted that the present complaint was filed maliciously by opposite party no.2. It was submitted that opposite party no.2 was a Class-IV employee of the department and since the complainant and other similarly situated persons were appointed illegally, petitioner no.1 in the capacity of Executive Engineer of the P.H.E.D., Begusarai had asked to show cause from the complainant and other similarly situated persons including one Sri Ramanand Singh. Learned counsel has referred to annexure-2 series to the petition which are photo copy of memo no.392 dated 19.7.2000 and letter dated 19.7.2000. Learned senior counsel has also referred to annexure- 3 to the petition and submitted that since the complainant and other similarly situated persons were retrenched, they had filed writ petition vide C.W.J.C. No.7053 of 2000 for payment of 4 arrear dues. The complainant in the office of the petitioner had created an unhappy scene and, thereafter, the petitioner no.1 was constrained to file a complaint before the Officer Incharge of Town Police Station, Begusarai vide his memo no.745 dated 7.9.2002. It was submitted that in view of annexure-3, opposite party no.2 as a counter blast has filed the present complaint on completely false allegation and learned Magistrate has taken cognizance by the impugned order. It has been submitted that the entire proceedings are liable to be set aside on the ground of malicious prosecution. 6. Mr. Kumar Binod Bariar, learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioners. It was submitted that from the contents of the complaint petition itself a prima facie case is made out and time without number it has been held that if the complaint petition discloses prima facie case and the learned Magistrate has taken cognizance of the offence, this court under section 482 of the Code of Criminal Procedure may not interfere with such order. Learned counsel in support of his stand has referred to a Single Bench judgment of this court reported in (1989)2 BLJ 264 (Bihar Cotton Mills Ltd., Phulwarisharif, Patna and others Vs. State of Bihar and another). It has been submitted that the said judgment was passed relying upon a judgment of the apex Court reported in A.I.R.1977 SC 1489 (State of Karnataka Vs. L.Muniswamy). It has further been submitted that the allegation made in the compliant petition was corroborated 5 by the witnesses and, as such, the learned Magistrate has righly passed the order of cognizance. 7. Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State supports the stand taken by the learned counsel appearing on behalf of opposite party no.2. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. Of course, at the time of hearing a petition under section 482 of the Code of Criminal Procedure, it is not required to examine the documents enclosed with the petition unless the same is proved through process of law but in the peculiar facts and circumstances of the present case the court was persuaded to examine the same. After going through annexure-2 as well as annexure-3 to the petition, it is evident that petitioner no.1 in the capacity of Executive Engineer of the department had asked the complainant, who was a Class IV employee of the department, in the year 2002 to show cause regarding his appointment. Subsequently, the complainant was retrenched along with other similarly situated persons. Annexure-2/1 shows that same show cause notice was issued to one Sri Ramanand Singh. Subsequently, the petitioner and others were retrenched and, thereafter, the petitioner had created an unhappy scene in the office of petitioner no.1, which is evident from annexure-3 i.e. official letter vide memo no.745 dated 7.9.2002 whereby petitioner no.1 had intimated the officer incharge of the town 6 police station, Begusarai to register a first information report and to take action so that in future such type of occurrence may not reoccur. After going through annexures-2 and 3 to the petition as well as allegation levelled against the petitioners in the complaint petition, the court is satisfied that the complaint petition was filed maliciously and, as such, it is necessary to interfere with the order of cognizance. In a case of malicious prosecution, this court is not denuded with the power to interfere even at initial stage. In the case reported in 1992 Supp(1) SCC 335 (State of Haryana and Others Vs. Bhajan Lal and Others), it has been clarified that even at the initial stage, in a case of malicious prosecution, power under section 482 of the Code of Criminal Procedure can be exercised. The court is satisfied that it is a glaring case of malicious prosecution which requires interference. 9. Accordingly, order of cognizance dated 20.2.2003 passed in Complaint Case No.1452C of 2002, Trial No.1662 of 2002 passed by Sub. Divisional Judicial Magistrate, Begusarai is hereby set aside and the petition stands allowed. Patna High Court 19th November,2010 Md.S./NAFR ( Rakesh Kumar, J.)