CRIMINAL MISCELLANEOUS No.3271 OF 2001 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. -------- SHEO NARAIN MANDAL son of late Mohan Mandal, resident of village-Mahmadia, P.S.-Dandkhora, Dist.-Katihar. …… …….Petitioner Versus 1.STATE OF BIHAR 2.Mania Devi @ Manorama Devi wife of Ganga Mandal @ Ganga Ram Mandal, resident of Village-Mahmadia, P.S.-Dandkhora, Dist.Katihar …….. …….Opp. Party. ------- For the petitioner: Mr. Arbind Kumar Mr.Suresh Prasad Barnwal For the State: Mr.Shiwesh Chandra Mishra, 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 9.1.2001 passed by the Judicial Magistrate, Katihar in C.A No.1217 of 2000 and entire criminal proceeding initiated against him for the offences under section 376 and 511 of the Indian Penal Code. 2. Short fact of the case is that opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Katihar which was numbered as C.A. No.1217 of 2000 against the petitioner alleging therein that on 4.7.2000 at about 10 P.M. while she was sleeping in her house the petitioner arrived there and tried to commit rape. However, the complainant pushed the accused and thereafter she raised alarm. Thereafter, the villagers arrived there and the accused fled away. After filing the complaint, the complainant in her support produced two 2 witnesses during enquiry, who supported the complainant’s case and, thereafter, by the impugned order the learned Magistrate took cognizance of the offences under sections 376 and 511 of the Indian Penal Code. 3. Aggrieved with the order of cognizance dated 9.1.2001 the petitioner approached this court by filing the present petition. This court on 25.1.2002, while issuing notice to opposite party no.2, directed that until further orders, further proceeding in the court below with regard to the petitioner shall remain stayed. On 31.10.2002 the case was admitted for hearing and it was directed that interim order passed on 25.1.2002 shall continue. 4. Mr. Arbind Kumar, learned counsel appearing on behalf of the petitioner, submits that the present complaint was filed by opposite party no.2 with an object to dissuade the petitioner from claiming his right and title over the land on which the complainant was residing and running a tea shop. It was submitted that earlier a proceeding under section 107 of the Code of Criminal Procedure was initiated against the complainant on the petition filed by the petitioner. Learned counsel has referred to annexure-5 to the petition, which is a report submitted by the Officer Incharge, Dandkhora Police Station to the Sub.Divisional Officer, Katihar. Learned counsel has also referred to an informatory petition (annexure-4) which was filed by the petitioner on 7.4.2000 before the Judicial Magistrate, Katihar which was numbered as Information Petition No.400 of 2000 wherein the petitioner had shown apprehension for false implication by opposite party no.2 and others. Learned counsel further submitted that opposite party no.2 is in habit of filing false cases. Earlier on the basis of written report submitted by opposite party no.2 a first 3 information report vide Dandkhora P.S. Case No.58 dated 19.6.1986 was also registered in which allegation was made that while she was sleeping in the night and her husband was away one accused namely, Lakhan Sharma had tried to outrage her modesty. Learned counsel has also referred to annexure-6 to the petition. It was further submitted that in the said case accused-Lakhan Sharma was put on trial and finally during trial the case was proved to be false and, thereafter, the accused-Lakhan Sharma was acquitted by a judgment dated 18th March, 1991 vide Sessions Trial No. 142 of 1988 by the Sessions Judge, Katihar. He has also referred to annexure-6/A to the petition which is a photo copy of the judgment dated 18th March, 1991 passed in Sessions Trial No.142 of 1988. Learned counsel for the petitioner submitted that keeping in view the fact as well as conduct of opposite party no.2 it is a fit case in which this court may interfere with the order of cognizance. 5. I have heard Mr. Shiwesh Chandra Mishra, learned Addl. Public Prosecutor appearing on behalf of the State. Despite valid service of notice opposite party no.2 has chosen not to appear in the case either personally or through an Advocate. 6. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on the record which categorically suggest that dispute in between the petitioner and the complainant was continuing since long. The allegation of the petitioner that opposite party no.2 had unauthorisedly occupied the land which was allotted to the petitioner also appears to be correct. On the basis of allegation made in the present complaint petition as well as allegation made in the first information report which is at annexure-6 and judgment 4 Patna High Court The 1st September, 2010 Md.S./NAFR of acquittal dated 18th March, 1991 i.e. annexure-6/A to the petition, this court is of the view that the present complaint was not filed fairly and honestly, rather the same was filed with a view to wreck vengeance and prosecution was initiated maliciously. Accordingly, this court is of the opinion that it is a fit case for interference with the order of cognizance. 7. Accordingly, order of cognizance dated 9.1.2001 passed by Judicial Magistrate, Katihar in C.A. No.1217 of 2000 is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)