CRIMINAL MISCELLANEOUS No.18678 OF 2003 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1073. ---- 1. SWAMINATH TIWARY SON OF LATE RAJ GRIHI TIWARY, RESIDENT OF VILLAGE BARKI NAINIJOR, POLICE STATION BRAHMPUR, DISTRICT BUXAR. 2. CHANDRAMA PANDEY SON OF SHRI RAM NAJAR PANDEY 3. PUNAM PANDEY, WIFE OF SHRI CHANDRAMA PANDEY, DAUGHTER OF DR. SWAMI NATH TIWARI, BOTH RESIDENT OF VILLAGE PANDEY PATTI, POLICE STATION BUXAR(M), DISTRICT BUXAR. 4. BIRENDRA TIWARY @ GARNA TIWARY SON OF SHRI SWAMI NATH TIWARY, RESIDENT OF VILLAGE LBARKI NAINIJOR, POLICE STATION BRAHMPUR, DISTRICT BUXAR. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. SRI RAM CHAUBE SON OF RAM NAGINA CHAUBEY, RESIDENT OF VILLAGE PANDEY PATTI, POLICE STATION BUXAR (M), DISTRICT BUXAR. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S Ram Suresh Roy,Sr.Adv. Abhay Kr. Roy, Adv. For the State : Mrs.Indu Bala Pandey,A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Four petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of entire criminal proceeding in Complaint Case No.156(c) of 2003 as well as for quashing of order dated 1.5.2003 passed by 2nd Class, Judicial Magistrate, Buxar, whereby the learned Magistrate has taken cognizance of 2 offence under Sections 323, 379, 341/34 of the Indian Penal Code. 2. Short fact of the case is that the opposite party no.2, who is neighbour of petitioners, filed a complaint in the court of Chief Judicial Magistrate, Buxar, which was numbered as Complaint Case No.156(c) of 2003. It was alleged in the complaint petition that on 22nd March,2003, while the complainant was sitting at his door at about 6 in evening, the petitioner no.1 arrived there and indulged in altercation on the point of using drain of the complainant. The said altercation subsequently turned to assault and the complainant was assaulted by all the petitioners. It was alleged that in the said occurrence, the accused persons forcibly took wrist watch of the complainant. The complaint petition was filed on 25.3.2003. After filing the complaint, enquiry was conducted by the learned Magistrate and thereafter, by order dated 1.5.2003, the learned Magistrate took cognizance of offence under Sections 323, 379, 341/34 of the Indian Penal code. 3. Aggrieved with the order of 3 cognizance, the petitioners approached this Court by filing the present petition. 4. On 1.4.2004, while issuing notice to opposite party no.2, this Court directed that in the meantime, further proceeding in Complaint Case No.156(c) of 2003 pending before the 2nd Class, Judicial Magistrate, Buxar shall remain stayed. In spite of service of notice, the opposite party no.2 preferred not to appear at the stage of admission and as such on 24.10.2005, the case was admitted for hearing and again, fresh notice was issued to opposite party no.2. While admitting, it was indicated that during the pendency of this application, the interim order dated 1.4.2004 shall remain operative. The order of stay is still continuing. Again after issuance of notice, as per service report, the opposite party no.2 refused to accept the same and as such it was considered as valid service. At the time of hearing also, none appeared on behalf of the opposite party no.2. 5. Shri Ram Suresh Roy, learned Senior Counsel appearing on behalf of the petitioners, while challenging the order of 4 cognizance as well as initiation of criminal proceeding against petitioners, has argued that the present complaint was filed maliciously by the complainant due to the reason that just three or four days before the filing of the present complaint petition, on a petition filed by petitioner no.3 against complainant and other three persons a land encroachment proceeding was initiated vide Encroachment Case No.2 of 2003-04. It was argued that the opposite party no.2 and other three persons of the same locality, had encroached the Government land as well as common drain and as such proceeding for removal of encroachment was initiated as per the petition filed by the petitioner no.3. A copy of order dated 21.5.2003 passed in Encroachment Case No.2 of 2003-04 has been brought on record as Annexure-5 to the petition. At the time of hearing of the present petition, learned counsel for the petitioners has produced certified copy of the order passed by the Circle Officer, Buxar in Encroachment Case No.2 of 2003-04 dated 21.5.2003. Keep it on record. Learned counsel for the petitioners, while referring to 5 averment made in complaint petition, has argued that the complainant had specifically stated that immediately after the occurrence on the same day, he had gone to police station for registering the case, but he was informed that the Officer-in-charge of the police station was on leave. Learned counsel for the petitioners has referred to Annexure- 6 to the petition i.e. Memo No.503 of 2003 dated 23.5.2003 issued by the Officer-in- charge of Buxar Muffasil Police Station. It was submitted that this shows that on the date of alleged occurrence, the Officer-in- charge was not on leave, but he was available in the police station. Accordingly, it has been submitted that the complainant had made a false statement in the complaint petition and this shows falsity of the entire complainant’s case. Learned counsel for the petitioner has alternatively argued that even for such trivial offences, the petitioners have already suffered a lot and as such this Court may interfere with the impugned order. 6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appears on behalf of the State. Even in absence of 6 opposite party no.2, she has opposed the prayer of the petitioners. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. At the time of hearing, a petition under Section 482 of the Code of Criminal Procedure, it is not required to examine documents in the case, which has not been got proved through process of law, but in peculiar facts and circumstances of the present case, this Court has examined the certified copy of the order dated 21.5.2003 passed in Encroachment Case No.2 of 2003-04. Certified copy of the same was produced before the court. After going through the order passed by the Circle Officer, Buxar, it is evident that against the complainant, notice was issued in encroachment proceeding. In encroachment case, it is evident that said proceeding was initiated on the basis of petition filed by petitioner no.3. From record, it further appears that dispute in between the parties was continuing for some time. Moreover, the allegation made in the complaint petition appears to be doubtful. 7 8. In view of the facts and circumstances that only four or five days prior to filing of the present complaint, encroachment proceeding was initiated against the opposite party no.2 on the petition filed by petitioner no.3, the court is satisfied that the present complaint was filed against the petitioners by opposite partyno.2 not fairly and honestly, but maliciously and on this ground alone, the court is satisfied that it is a fit case for interfering with the impugned order. 9. Accordingly, the order dated 1.5.2003 passed by 2nd Class Judicial Magistrate, Buxar in Complaint Case No.156(c) of 2003 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 9.9.2010 N.A.F.R./N.H.