IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3801 of 2007 SHAILENDRA MISHRA, SON OF SRI BISWANATH MISHRA, RESIDENT OF VILLAGE HARPUR, P.S. BANIAPUR, DISTRICT- CHAPRA, AT PRESENT RESIDING AT FLAT No.108, GAURI SHANKAR COMPLEX, NEAR KANKARBAGH RAILWAY BRIDGE, P.S. KANKARBAGH, DISTRICT-PATNA………………...PETITIONER. Versus 1. THE STATE OF BIHAR. 2. DR. UDAYAN NARAIN, SON OF MAHENDRA NARAIN SINGH, RESIDENT OF HOUSE NO.46, KAVI RAMAN PATH, BORING ROAD, PS. BUDHA COLONY, PATNA, AT PRESENT RESIDING GAURI SHANKAR COMPLEX, NEAR KANKARBAGH RAILWAY BRIDGE, P.S. KANKARBAGH, DISTRICT-PATNA. …………………………………………………..OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Ramakant Sharma, Senior Advocate, L.K. Sharma and R. Kumar, Advocates. For the State : Dr. Mayanand Jha, A.P.P. For O.P. No.2 : M/s. Aditya Narain Singh and Kundan Kumar Sinha, Advocates. ------------- O R D E R The petitioner, one of the 6 persons arrayed as accused in Complaint Case No.2286(C) of 2004, has prayed for the quashing of the order dated 13.10.2004 passed therein by Sri O.P. Pandey, erstwhile Judicial Magistrate, Patna, whereby he has taken cognizance for offences under Sections 406, 420, 323, 341, 386, 497 and 120-B I.P.C. against all the accused persons named in the complaint petition, including the petitioner. The aforesaid complaint was lodged by one Dr. Udayan Narayan, impleaded herein as O.P. No.2, who stated inter alia, that being a consultant neurologist having his clinic in East Boring Canal Road he was - 2 - on the look out for a suitable flat as also space for clinic in Kankarbagh area and in this regard accused nos.1, 2 and 6 approached him with the brochure of a proposed complex under the name of Gauri Shankar Complex and introducing himself as a Secretary of Adarsh Niwas Sahkari Grih Nirman Samiti(hereinafter referred to as “the Samiti”) represented a very rosy picture before the complainant about the construction of a multi storied-cum- residential complex on the lands of M/s. Singh and Sons with 28 residential flats, 19 shops and garage space situated at Lohia Nagar, Kankarbagh upon 9.70 kathas of land. Displaying a rough site plan of the said project, they also assured the complainant that the map had been sanctioned by the P.R.D.A. and, therefore, there were no hassles in the construction of the said project and induced the complainant to purchase flat and office space in the said proposed complex saying that the height of the shops would be 20 ft and the shops would also contain mezzanine floors and the project would be completed by the end of December, 2003. According to the complainant the said assurance was given in September, 2001. It is further said that the complainant after consulting a few others became ready to purchase one flat and two shops (shop nos.10 and 16) as per approved plan for residential and clinic purposes. It is alleged that Flat No.M/101 in the said complex was purchased by the complainant in the name of his mother Shanti Singh on payment of full consideration of Rs.10 lacs. Although the delivery of possession was made in the month of February, 2004, the registered deed was not executed notwithstanding several requests by the complainant to accused nos.1 and 2 who were evading the same under one pretext or the - 3 - other. It is further alleged that requests by the complainant to give possession of shop nos.10 and 16 for which he had already paid a total sum of Rs.3, 70,000/- in cash and by cheques on various dates, the full details whereof was also revealed, and on pressure being applied accused nos.1 and 2 agreed to give possession of the said flats as approved by the P.R.D.A. and on 23.8.2004 accused no.1 requested the complainant to come on 15.9.2004 with the balance amount on which date he would execute the sale agreement. It is also alleged that on the appointed day when the complainant went to the office of the Samiti, none was present there except accused no.6 whereupon he wrote a letter in the name of the Secretary requesting for furnishing relevant documents and gave the same to accused no.6. It is said that as the complainant was returning to his clinic he found all the accused persons coming to the office whereupon he requested accused nos.1 and 2 to furnish him all the documents and to give the possession of the said shops but all the accused persons allegedly abused and assaulted him in conspiracy with accused nos.4 and 5 took the complainant to Kankarbagh Police Station against his will by using force and at the Kankarbagh Police Station the complainant was allegedly kept confined. It is said that at the police station he received a call about a serious patient on his mobile but accused no.5 snatched the mobile and dashed it on the ground breaking the mobile to pieces and abusing the complainant in filthy language pushed his batten in the complainant’s stomach. The complainant is said to have informed his family members and friends whereupon Satyendra Singh and Sunil Singh immediately - 4 - rushed to the police station and they too were assaulted and wrongfully confined by the accused persons in conspiracy with accused nos.4 and 5. Threats were also advanced to the complainant that if he wanted to live peacefully in the flat then he must pay Rs.25,000/- per month as rangdari. It is also alleged that after torturing for 5 to 6 hours in the police station they were allowed to go after furnishing personal bonds which the complainant claims he had furnished against his will. Apart from the other allegations, the allegation against the petitioner herein is that he was fully associated with accused nos.1, 2 and 6 and was all along present at the time of assault of the complainant and was also involved in demanding the rangdari. While asserting the innocence of the petitioner and of his not having committed any offence and of his false implication with oblique and ulterior motive, it was submitted by the learned counsel for the petitioner that he is the occupant of one of the flats in the Gauri Shankar Complex and had also purchased flat no.108 for residential purposes and shop nos.11, 12, 13 and 13-A for clinic purposes from accused no.1 and had also come in possession thereof vide possession letters dated 19.7.2003 and 1.3.2004. It is further submitted that the petitioner and the complainant are acquainted with each other and were students at the P.M.C.H. and were residing in the same hostel at Delhi from 1996 to 1998 and the wife of the present petitioner was a close friend of the complainant’s wife. It is also submitted that the alleged shop of the complainant is adjacent north of the petitioner’s clinic and he was present in the clinic when some persons of the complainant arrived at Gauri - 5 - Shankar Complex on 16.9.2004, entered into his clinic and asked for accused no.1. Since the petitioner was busy in clinical work of a patient, he told them that he was not concerned with accused no.1 in any manner whereupon the intruders assaulted the petitioner for which he complained to accused no.1 and of accused no.1 lodging a sanha before the Kankarbagh Police Station stating about the occurrence in which the petitioner and one Manas Verma were also abused and misbehaved with. It is further submitted that the petitioner is in no way involved in the purchase of the flat and shop premises and his name has been impleaded only in paragraph-11 of the complaint petition. On the aforesaid premise, it was submitted that the petitioner is innocent and is unnecessarily being dragged in for no fault on his part and is presumably implicated as he happens to be a witness of the sanha and the continuance of the proceeding, so far as the petitioner is concerned, would be an abuse of the process of the court as from the perusal of the complaint and the evidence available no offence can be said to have been made out against the petitioner. The complainant –O.P.No.2 has appearned and although no show cause or written statement was filed by him, oral submissions have been made to support the impugned order. Unfortunately, neither the statement of the complainant on S.A. nor the evidence of the witnesses of the complainant examined at the inquiry under Section 202 Cr.P.C. is available for perusal. It is also not available in the impugned order as to the materials against the petitioner which compelled the learned Magistrate to take cognizance against him. - 6 - The impugned order merely states that there were sufficient grounds for proceeding as a prima facie case has been made out against the accused persons, named in the complaint petition. When a complaint in respect of offences punishable under the provisions of sections of the Penal Code has been presented before the court, the court is bound to make a scrutiny of the material which has been placed before it for the purposes of finding out whether any prima facie case has been made out showing commission of offence punishable under the provisions of the Penal Code or under any other Penal Law. A person ought not to be dragged into court merely because a complaint has been filed and, therefore, before a prima facie case is said to have been made out for proceeding further, the Magistrate is required to apply his judicial mind to the materials available on record and for this he has to make a scrutiny of the materials qua the ingredients and materials making out the offence. Unfortunately, the reasons for taking cognizance against the petitioner herein and for summoning him to face the trial have not been disclosed by the learned Magistrate in the impugned order more so when the allegation against the petitioner is restricted to paragraph-11 of the complaint petition. In the aforesaid circumstances, the impugned order, so far as the petitioner is concerned, is hereby set aside and the matter is remitted back to the court below for fresh consideration and passing a fresh order in the light of the observations made above. In the result, the application, so far as the petitioner is concerned, is allowed and the matter is remitted back to the court of the - 7 - learned Magistrate or his successor in office to pass fresh orders in the light of the observations made after perusing the complaint petition and the materials which have surfaced at the inquiry under Section 202 Cr.P.C. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 10th of July, 2009. Pradeep Srivastava/A.F.R.