IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29563 of 2007 1. MD.KADIR , S/o Ramzan alias Ahraf 2. Sabbir, Son of Patluddin alias Kanhal 3. Imaman Khatoon Wife of Md. Kadir 4. Bacchamai alias Dhaniya Devi , daughter of Md. Kadir, 5. Kamal Son Fasadi Dom 6. Jamal Son of Fasadi Dom 7. Kutuban Nisa Banjaran wife of Pajeer 8. Pajeer Son of Moinuddin 9. Wahid son of Ponab Ali 10. Abdul Wasid Son of Ponab Ali 11. Hafeez Son of Ahmad Hussain alias Sukhha …… Petitioners Versus 1. STATE OF BIHAR 2. Abbas Hussain Son of late Mahar Ansari, R/o village Damalbadi, P.O. and P.S. Paharkatta (Pothia) District Kishanganj …… Opp. Parties. ----------- For the petitioner : M/s Y.V. Giri, Sr. Advocate & Raju Giri, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : Mr. Sarangdhar Jha, Advocate O R D E R All the 11 persons arrayed as accused in protest cum Complaint Case No. 175 of 2006 arising out of Pothia P.S. Case No. 18 of 2004 have filed this application for quashing of the entire criminal prosecution arising therefrom including the order dated 12.6.2006 passed therein by the learned Chief Judicial Magistrate, Kishanganj, whereby he has taken cognizance of offences under sections 364 and 366/34 IPC against the petitioners and the consequential order dated 10.5.2007 passed by the learned Additional Sessions Judge, Kishanganj in Cr. Revision No. 267 of 2006, whereby the revision preferred against order dated 12.6.2006 was dismissed. The aforesaid police case was registered under sections 2 364, 366/34 IPC when the written report dated 11.2.2004 by Abbas Ansari, impleaded herein as O.P. No. 2 addressed to the Superintendent of Police, Kishanganj was forwarded to the concerned police station. As per allegation in the written report at about 9 P.M. on 9.2.2004 Kutubun Nisa and Dhaniya Devi @ Bacchamai came to the house of Abbas Ansari and told his daughter Fatima Begum that her father was calling her out side and taking it to be true his daughter went out with them and in the meantime Wahid and Abdul Wasid came on a motorcycle and the other named o- accused forcibly got Fatima seated on the motorcycle and both of the motorcycle riders took her away towards the north direction. It is stated that the information of the incident was given to Abbas Ansari by witnesses Zamiruddin and Ibrahim on receipt whereof he along with other villagers chased the accused who managed to escape. The police after due investigation found the prosecution case false and accordingly submitted the final form exonerating all the petitioners and also recommended action against Abbas under sections 182 and 211 IPC . The final form appears to have been accepted by the learned Chief Judicial Magistrate on 1.2.2006 but he took no action / cognizance under sections 182 and 211 IPC and instead proceeded with the protest cum complaint petition bearing Complaint Case No. 175 of 2006 under section 202 Cr.P.C. and thereafter took cognizance vide order dated 12.6.2006 against 3 the petitioners. Cr. Revision No. 267 of 2006 was filed before the Sessions Court by the petitioners which was dismissed by the learned 1st Additional Sessions Judge, Kishanganj vide order dated 10.5.2007. Assailing the impugned order of the courts below it was sought to be submitted that in course of investigation in the police case the police examined several independent witnesses whose statements were also recorded under section 164 Cr.P.C. and they had stated that Abbas Ansari has only one daughter who is also married and has no daughter by the name of Fatima and on the basis thereof the final form had been submitted. It was further submitted that in the inquiry under section 202 Cr.P.C. only interested witnesses who are close relations of the informant, namely , his wife, his daughter-in-law and his son-in-law were examined and no independent witness having been examined the order taking cognizance was bad in law. It was further sought to be submitted that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course and the Magistrate was required to examine the nature of the allegation made in the complaint, the evidence, both oral and documentary, in support thereof and also see if the same was sufficient to make out a prima facie case for proceeding against the accused. In this context it was submitted that the evidence of the witnesses examined at the inquiry, even if taken at there face value, does not support the prosecution case nor does the 4 complaint petition itself disclose the essential ingredients of the offence as alleged against the petitioners. Narrating the factual matrix leading to the false implication the learned counsel for the petitioner submitted that the said Abbas Ansari was a quack doctor and a tenant in the house of petitioner no. 1 since 1989 and was neither paying rent, therefor nor vacating the premises although requested to do so and to save his own skin he has filed the instant case. It was further submitted that the said Abbas Ansari was in the habit of instituting false cases against the petitioners and reference has been made to Paharkatta P.S. Case No. 39 of 1987 registered under section 376 IPC was filed against petitioner no. 1 wherein the police had submitted a final form and the subsequent compliant case filed on the same set of facts was dismissed by the learned Chief Judicial Magistrate. Admittedly the police case and the subsequent protest cum complaint case are two different aspects of the matter and they hold their own and exclusive field. Whereas in the police case it is the police who holds investigation , in the complaint case it is the Court of Magistrate who inquires into the matter by resorting to the procedure laid down in Chapter XV. However, the end result is the same inasmuch as in the event of the police submitting a chargesheet against the accused persons in the inquiry under section 202 Cr.P.C. the Magistrate takes cognizance and where final form is submitted by the police it is accepted and where no prima facie case is made out in the inquiry under section 202 Cr.P.C . the 5 complaint is dismissed under section 203 Cr.P.C. It is by now well settled by a four Judges Bench of the Apex Court in the case of Chandradeo Vs. Prokash Chandra, (AIR 1963 SC 1430) that since the object of an inquiry under section 202 Cr.P.C. is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate has to satisfy himself that there is sufficient grounds for proceeding. It was also held that in order to come to this conclusion he is entitled to consider the evidence taken by him or recorded by him in the inquiry and he is not entitled to rely upon any other materials besides this and where there is prima facie evidence, even though an accused may have a plausible defence of his innocence, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. The revisional court to my mind was fully justified in upholding the order of the learned Magistrate and dismissing the revision. The reasons assigned by the revisional court was that the evidence of the witnesses cited by the complainant in the protest cum complaint case and the earlier petition before the Superintendent of Police as witnesses of the occurrence were not recorded by the police in course of investigation and the statement of the four witnesses recorded under section 164 Cr.P.C. stating that Abbas Ansari had no daughter by the name of Fatima were never cited at witnesses . That apart as laid down in Chandradeo’s case 6 (supra) the Magistrate and the revisional court has rightly not placed any reliance on the police investigation while dealing with the protest cum complaint petition of Abbas Ansari and they cannot be faulted for the same. The revisional court has rightly held : “so in my opinion the evidence of these four witnesses under section 164 Cr.P.C. is of no help” Accordingly the revisional court was apprehensive that the examination of these four witnesses had been resorted to by the police so that final form could be submitted. I find no apparent illegality, impropriety or irregularity in the impugned orders of the two courts below so as to quash the entire criminal proceeding. The decision in All Cargo Mover (I) Pvt. Ltd. Vs. Dhyanesh Badarmal Jain reported in 2008 (1) PLJR 51 (SC) and Indramohan Goswami Vs. The State of Uttaranchal reported in 2008(1) PLJR 82 (SC) by the learned counsel for the petitioners has no application in the present case since matters in issue in the instant case are very much different from those in issue in the two cases cited by the learned counsel for the petitioners. In the result I find no merit in this application which is accordingly dismissed. The petitioners shall be at liberty to raise all these issues at the time of framing of charge. Patna High Court, Patna. Dated : The 15th of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)