Criminal Miscellaneous No.1280 of 2004 *** In the matter of an application under section 482 of the Code of Criminal Procedure. *** C.ASHOK VARDHAN, son of Late Professor Rameshwar Nath Tiwary, resident of Officers Flat No. 35/60, Bailey Road, Patna, at present posted as Additional Member, Board of Revenue, Bihar, Patna. ...Petitioner Versus 1. THE STATE OF BIHAR & 2. Ajay Kumar Srivastava, father name not known, resident of Postal Park Road No.1, P.S. Kankarbagh, District-Patna …Opposite Parties *** For the petitioner : Mr. P. K. Shahi, Sr. Advocate with Mr. Vikas Kumar, Advocate For the State : Mr. Choubey Jawahar, APP *** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The petitioner seeks quashing of the order dated 6.10.2001 passed by the Judicial Magistrate, Patna, in Complaint Case No.1284© of 2001 by which the learned Magistrate, Patna, has taken cognizance of the offence under section 406 Indian Penal Code. 2. On 16.7.2004, the matter was heard in admission and notices were issued to the opposite party no.2, and further proceeding was stayed. Thereafter, on 8.12.2006, the matter was admitted for hearing accepting valid service of notice to the opposite party no.2. It appears that despite service of notice the opposite party no.2 has chosen not to appear before this court. 4. The case of the complainant is that in the year 1993 certain tenders were floated for construction of a Boys Hostel at Darbhanga, pursuant to which the complainant made a bid and after the tender was - 2 - opened on 27.5.1993, he was required to deposit the NSC and pass book of certain amount as security for an agreement. The complainant is said to have deposited the said documents but later on work order was not issued at the end of the department nor did the accused persons return his pass- book or the NSC despite his repeated request letters for the same. 5. After examination of the complainant on solemn affirmation the court took cognizance in the matter as stated above. 6. Submission of the counsel for the petitioner is that the petitioner was Administrator of the Bihar State Scheduled Castes Co- operative Development Corporation Ltd. between 21.5.1999 to 19.6.2000 i.e. after the documents were deposited by the Complainant. Since, it is not the case of the complainant that he had handed over his NSC or pass-book to the petitioner, therefore, there was no question of any entrustment to him which is the essential ingredients of Section 406 Indian Penal Code. Moreover, NSC maturity value of Rs.50,375.00 was paid to the complainant on 9.7.2004 vide Indian Bank, Patna Main Branch, by cheque no.046102 dated 8.7.2004, the receipt of which is filed herein. With regard to the pass-book, the GPO, Patna, reported that there was no account in the said name in the GPO and, therefore, presumably it was a false document. 7. On perusal of the complaint petition it appears that no offence whatsoever is made against any of the accused persons much less under Section 406 Indian Penal Code since the only complaint of opposite party no.2 was that the accused failed to return his documents, which by no stretch of imagination, would be a criminal offence defined under Section 2(n) of the Code of Criminal Procedure. I am also conscious of Section 95 IPC which reads as follows: “95. Act causing slight harm.- Nothing is an offence by reason that it causes, or that it - 3 - is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.” To understand the full import of the section, reference may be made to a decision reported in AIR 1966 SC 1773 (Mrs. Veeda Menezes Vs. Yusuf Khan Haji Ibrahim Khan and another). The facts of the case there, was that a dispute had arisen between a landlord and tenants and allegedly the tenants had acted in a highhanded manner and reportedly committed trespass and thrown a shoe at the informant and slapped her servant. The accused were held guilty by the Trial court but acquitted of the charges in the High Court in revision. The informant being aggrieved preferred an appeal against the acquittal in the Hon‟ble Supreme Court. The Hon‟ble Supreme Court considering Section 95 Indian Penal Code held as follows: “It is true that the object of framing S.95 was to exclude from the operation of the Penal Code those cases which from the imperfection of language may fall within the letter of the law, but are not within its spirit and are considered, and for the most part dealt with by the Courts, as innocent. It cannot, however, be said that harm caused by doing an act with intent to cause harm or with the knowledge that harm may be caused thereby, will not fall within the terms of S. 95. The argument is belied by the plain terms of S.95. The section applies if the act causes harm or is intended to cause harm or is known to be likely to cause harm, provided the harm is so slight that no person of ordinary sense and temper would complain of such harm. The expression “harm” has not been defined in the Indian Penal Code: in its dictionary meaning it connotes hurt; injury; damage; impairment; moral wrong or evil. There is no warrant for the contention raised that the expression “harm” in S.95 does not include physical injury. The expression “harm” is used in many sections of the Indian Penal Code. In Ss 81, 87, 88, 89, 91 92, 100, 104 - 4 - and 106 the expression can only mean physical injury. In S. 93 it means an injurious mental reaction. In S.415 it means injury to a person in body, mind, reputation or property. In Ss. 469 and 499 „harm‟, it is plain from the context, is to be reputation of the aggrieved party. There is nothing in S.95 which warrants a restricted meaning which counsel for the appellant contends should be attributed to that word. Section 95 is a general exception, and if that expression has in many other sections dealing with general exceptions a wide connotation as inclusive of physical injury, there is no reason to suppose that the Legislature intended to use the expression “harm” in S. 95 in a restricted sense.” 7. In my view, section 95 Indian Penal Code is not given the importance it deserves in the context of our complex society where sometimes litigations become a tool to vent ire and frustrations and the Courts become a stage for purely dispensable drama at the cost of an ordinary, unsuspecting tax payer, and, the genuine litigants. At the stage of 482 Cr. P.C. or revision, the higher Courts are expected to quash such litigations to ensure that such litigations do not further choke our criminal justice delivery system. 7. For the aforegoing reasons, this application is allowed and the entire proceeding including the order dated 6.10.2001 passed in Complaint Case No.1284© of 2001 by which the learned Magistrate, Patna, has taken cognizance of the offence under section 406 Indian Penal Code, is hereby quashed. 8. Application stands allowed. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 12th July, 2010 AFR / JA/-