CRIMINAL MISCELLANEOUS No.30682 OF 2000 In the matter of an application under Section 482 of the Code of the Criminal Procedure ----------- 1. Aniklal Mandal , Son of Bholi Mandal 2. Sushil Mandal, Son of Late Yugal Mandal 3. Chandeshwar Mandal @ Chandra Kishore Mandal, Son of Anik Lal Mandal 4. Sudeshwari Mandal, Son of Bateshwar Mandal 5. Ranjeet Mandal, Son of Sushil Mandal All are residents of Village-Madhuban, Police Station-Belhar, District-Banka ---------------- Petitioners Versus 1. The State Of Bihar 2. Shyam Mandal, Son of Late Kali Mandal, resident of Village- Madhuban, Police Station-Belhar, District-Banka--- Opp.Parties ------------------ For the petitioners: S/Sri Manish Kumar, Shatrugan Kr.Sinha, and Sudhir Kumar, Advocates For the State: Sri Surendra Prasad Singh, A.P.P. ---------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, had initially challenged the order dated 11.09.2000 passed by the learned Chief Judicial Magistrate, Banka in Complaint Case No. 174 of 1999. By the said order, the learned Chief Judicial Magistrate after conducting enquiry had taken cognizance of offence under Section 365 of the Indian Penal Code. After the order of cognizance, the present petition was filed. However, by order dated 24.10.2002, while admitting the case, this Court rejected the petition of petitioner no.1, namely, Aniklal Mandal and further proceeding in the court below with regard to petitioner nos.2 2 to 5 was directed to remain stayed. 2. Short fact of the case is that Opp.Party no.2 on 7.9.1998 filed a complaint vide Complaint Case No.835 of 1998 in the court of the learned Chief Judicial Magistrate, Banka alleging therein that 14 accused persons , which include the petitioners, had kidnapped Arvind Mandal , who was brother of the complainant and thereafter his brother never returned to his house. After filing of the complaint petition, the learned Chief Judicial Magistrate under Section 156 (3) of the Code of Criminal Procedure forwarded the complaint to the police for its registration and investigation and, accordingly, an F.I.R. vide Belhar P.S. Case No.90 of 1998 was registered on 16.9.1998 for the offence under Sections 147,148,504 and 364 of the Indian Penal Code against all the 14 accused persons including the petitioners. During investigation, the police found that the allegation was falsely made by the complainant and, as such, final form was submitted on 25.9.1998 and recommended for initiating prosecution against the complainant for the offence under Sections 211 and 182 of the Indian Penal Code. On the same day, i.e. on 25.9.1998 a report was submitted by the police in the court of the learned Chief Judicial Magistrate for prosecuting the complainant for the offence under Sections 211 and 182 of the Indian Penal Code. The report was submitted by Sri S.S. Prasad, Assistant Sub-Inspector of Police of Khesar O.P., a typed copy of which has been brought on record as Annexure-3 to the petition. 3. Before filing of the final form it appears that the complainant filed a protest petition in the court of the learned Chief 3 Judicial Magistrate, which was treated as complaint petition and the learned Magistrate conducted an enquiry. During the enquiry altogether eight witnesses were examined and thereafter by the impugned order, i.e. order dated 11.9.2000 the learned Chief Judicial Magistrate took cognizance of offence under Section 365 of the Indian Penal Code and transferred the case record to the court of Sri Ashok Kumar, Judicial Magistrate, 1st Class, Bank for its trial and disposal. 4. Aggrieved with the order of cognizance, the petitioners approached this Court and the same was admitted, as indicated above. 5. Sri Sudhir Kumar, learned counsel appearing on behalf of the petitioners, while pressing the present petition, firstly argued that the allegation was itself false and due to that reason the Investigating Officer after investigation has submitted report for prosecuting the complainant under Sections 211 and 182 of the Indian Penal Code. It was submitted that during the investigation, the police had noticed that the dispute in between the complainant side and accused persons were going on. The police also found that the alleged victim boy was residing at Delhi and he was earning his livelihood there for last more than 10 years and he had never returned to his village i.e. place of occurrence. On the basis of aforesaid facts, the learned counsel for the petitioners has argued that the present case was filed by the complainant maliciously on a complete false allegation. Accordingly, it has been prayed by the learned counsel for the petitioner to quash the order of cognizance. 6. Sri Surendra Prasad Singh, learned Addl.Publice Prosecutor appearing on behalf of the State has vehemently opposed the 4 prayer of the petitioners. In this case, despite the fact that Opp.Party no.2 has entered his appearance through his counsel, at the time of hearing none has come forward on his behalf. 7. Besides hearing learned counsel for the petitioners and the State, I have also perused the materials available on record. On perusal of the entire materials available on record, the Court is satisfied that the police had not conducted the case in a fair manner. The complainant in the complaint petition, i.e. Complaint Case No.835 of 1998 has disclosed that while he went to Khesar O.P. for lodging the case, he was scolded by the Assistant Sub-Inspector of Police and he was threatened that he will be implicated in false case and, thereafter, he had filed the complaint case before the learned Chief Judicial Magistrate and the learned Chief Judicial Magistrate referred the complaint to the police for its registration and investigation and, as such, an F.I.R. Vide Belhar P.S. Case No.90 of 1998 was registered on 16.9.1998. Surprisingly, the police instead of investigating the case properly, without even ascertaining about the victim boy within nine days from the date of registration of the F.I.R. came out with a final report and submitted the same on 25.9.1998. In the said report, the police requested the learned Chief Judicial Magistrate for prosecuting the complainant. However, before the final form was submitted by the police, the complainant apprehending that he may not get justice from the police again filed a protest petition in the court of the learned Chief Judicial Magistrate, which was seen by the learned Chief Judicial Magistrate on 22.9.1998, i.e. before filing of the final report. The protest petition has been brought 5 on record as Annexure-4 to the petition and on the top of the first page of the protest petition, it appears that the learned Chief Judicial Magistrate had seen the protest on 22.9.1998. I have also perused the final report, which has been brought on record as Annexure-2 to the petition. From the report, it appears that the Investigating Officer instead of recording the statements of the witnesses, who were named as witness in the complaint petition had approached some other persons and thereafter the police came to the conclusion that it was a false case. The report was prepared by Sri S.S. Prasad, Assistant Sub-Inspector of Police, Khesar O.P.. Perusal of the report itself indicates the quality of the Investigating Officer, which depicts many untold story about the Investigating Officer. However, while hearing the present petition, this Court is refraining from passing any remark against the Investigating Officer, but it is surprising that in a case, which was registered for kidnapping how within nine days from the date of registration the Investigating Officer concluded the case to be false. Though the police had noticed that the victim was residing at Delhi, he had not bothered to verify the location of the victim and without taking any such investigation, he had done only paper work. The complainant in his protest petition has categorically stated that he had gone to the Investigating Officer along with the witnesses for recording their statements under Section 161 of the Code of Criminal Procedure, but the Investigating Officer refused to record the statement of such witnesses. 8. The protest petition was subsequently treated as complaint petition and during the enquiry altogether eight witnesses were 6 examined and only thereafter the learned Chief Judicial Magistrate has taken cognizance of offence under Section 365 of the Indian Penal Code. On perusal of the impugned order, the Court is satisfied that while passing the impugned order of cognizance, the learned Magistrate has committed no error. Accordingly, I do not find any merit in the present petition and the petition stands rejected. In view of rejection of the present petition, the interim order of stay stands automatically vacated. Keeping in view the fact that the matter remained pending for a long period, it is desirable to direct the court below to proceed with the case expeditiously without granting any unnecessary adjournment. With the above observation and direction, the petition stands rejected. Let a copy of this order be sent to the court below as well as the concerned Superintendent of Police forthwith. Patna High Court,Patna Dated: the 29th July,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )