Criminal Miscellaneous No.28277 OF 1998 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure. ---- ANANDI PASWAN, S/O KONER PASWAN, A.S.I. AT KAKO POLICE- STATION AT PRESENT POSTED AS A.S.I. OF JAHANABAD TOWN POLICE STATION, DISTRICT- JAHANABAD. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. ANIL KUMAR SAO S/O RAM NANDAN @ BUDHANI SAO, RESIDENT OF VILLAGE-P.S. KAKO, DISTRICT JAHANABD. ... ... OPPOSITE PARTIES. ---- For the Petitioner : None For Opposite Party No.2 : Mr. Kamal Kumar Sinha,Adv. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Yesterday, when the case was called out, none appeared on behalf of the petitioner either to press the petition or to make a prayer for adjournment. However, learned counsel appearing on behalf of opposite party no.2 and State and learned counsel for the State were present. It was indicated on 30.3.2010 that it is made clear that if tomorrow no one appears, the matter shall be decided on the basis of materials available on record even in absence of learned counsel for the petitioner. - 2 - 2. Today again, when the case was called out, none has come forward to press this petition. 3. The petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of order dated 9.8.1994 passed by Judicial Magistrate, Ist Class, Jehanabad in Complaint Case No.382 of 1992. By the said order, the learned Magistrate had taken cognizance for the offences under Sections 147, 427 and 323 of the Indian Penal Code. 4. Short facts of the case is that the opposite party no.2 i.e. complainant filed a complaint case vide Complaint Case No.382 of 1992 with an allegation that while he was sitting at his grocery shop, the Officer-in-charge of Kako Police Station, namely, Laxmi Paswan and the petitioner Anandi Paswan arrived there and they wanted to conduct a search into the shop of Sheo Narayan Sao, which was resisted by the complainant. After being resisted and opposed, the Officer-in-charge - 3 - slapped the complainant. In the said offence, the complainant also abused the police officer. Subsequently, the Officer- in-charge and this petitioner returned back by saying that they will teach lesson to the complainant. After half an hour, the Officer-in-charge along with petitioner and other about 15 police officials came to the shop of the complainant but the complainant did not open the door. Thereafter, the police started breaking the door of the shop. It was alleged that after noticing the action of the police, several persons gathered there and resorted to pelting stone on the police personnel, which provoked the police to open fire. It was alleged that petitioner fired one round from his pistol which hit the complainant shoulder. It was also alleged that the Officer-in-charge fired from his pistol which hit near the neck of the complainant. Though, the complainant was injured, the police arrested him. He was firstly taken to the hospital and thereafter, he was remanded to the judicial custody. The - 4 - complainant alleged that after being released, he contacted his advocate and thereafter, present complaint petition was filed. 5. In the present petition, stand has been taken by the petitioner that the complainant was made accused in Kako P.S. Case No.150 of 1992 for the offences under Sections 352 and 307 of the Indian Penal Code and Section 25(1-A)26 and 27 of the Arms Act on an allegation that on 20.11.1992 between 11.45 A.M. to 3.00 P.M., the complainant fired upon police, caused hindrance to their official duty and thereafter, he was arrested. The seized revolver which was seized from the complainant was sent for its examination and the report suggested that firing was made from the said revolver. Thereafter, the District Magistrate accorded sanction for prosecution of the complainant for offence under Section 25(1-A),26 and 27 of the Arms Act. In the said case, charge sheet was also submitted against the complainant. - 5 - 6. The petitioner, while challenging the order of cognizance, has also taken a stand that without prosecution sanction, the learned Magistrate was not authorized to take cognizance of the offences against the petitioner. 7. Learned counsel appearing on behalf of the opposite party no.2 has opposed the prayer of the petitioner and he submits that the complainant was falsely made accused by the police official including the petitioner. He submits that allegation of assault is true and as such learned Magistrate has rightly taking cognizance for the offences mentioned above. 8. I have also examined the materials available on record as well as the impugned order. It appears that the allegation of the complainant with regard to offence under Sections 149 and 307 of the Indian Penal Code and Section 27 of the Arms Act were not accepted to be true by the learned Magistrate and as such though in the complaint petition it was alleged - 6 - that accused persons had committed offences under Sections 148, 149, 307, 347 and 323 of the Indian Penal Code and 27 of the Arms Act the learned Magistrate had taken cognizance only for the offence under Sections 147, 427 and 323 of the Indian Penal Code. Meaning thereby that the allegation of firing by the police official and receiving injury by the complainant was not accepted as true by the learned Magistrate. From the pleading as well as annexures to the petition particularly i.e. an F.I.R. i.e. Jehanabad P.S. Case No.150 of 1999, it appears that the petitioner and other police officials, while discharing their official duty, had apprehended the petitioner along with fire arm and as such the petitioner after being arrested was produced before the learned Magistrate and remanded to the judicial custody. It can be said that while apprehending the complainant, he received some injuries, but at the same time, it cannot be said that the petitioner, who was Assistant Sub Inspector of Police, had committed any act - 7 - PATNA HIGH COURT Dated 31.3.2010 N.A.F.R./N.H. which warrants their prosecution in the facts and circumstances of the present case. 9. Accordingly, I am of the view that allowing the prosecution of the petitioner on such complaint will amount to abuse the process of the court. Accordingly, while exercising jurisdiction under Section 482 of the Cr.P.C., I think it is a fit case to interfere. 10. Accordingly, order of cognizance i.e. order dated 9.8.1994 passed in Complaint Case No.382 of 1992 corresponding to Tr. No.122 of 1998 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.)