CRIMINAL MISCELLANEOUS No.36708 OF 2007 In the matter of an application under Section 482 of the Code of Criminal Procedure -------------- AMBRISH OJHA @ AMBRISH, Son of Bhuwaneshwar Ojha, resident of Village & Post Office- Badaka Siganpura, Police Station Simari, District-Buxar ------------ Petitioner Versus 1. THE STATE OF BIHAR 2. Tej Narayan Ojha, Son of Late Haribhajan Ojha, resident of Village-Kharha Tand, Police Station-Simari , District-Buxar ------------ For the petitioner: Sri Viveka Nand Pathak, Advocate For Opp.Party no.2: None For the State: Sri A.M.P.Mehta, 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 26.6.2007 passed by the learned Judicial Magistrate, 1st Class, Buxar in Complaint Case No.152(C) of 2007. By the said order, the learned Magistrate has taken cognizance of offence under Section 379 of the Indian Penal Code and directed for summoning the petitioner. 2. Short fact of the case is that on 20.2.2007, a complaint was filed by Opp.Party no.2 in the court of learned Chief Judicial Magistrate, Buxar, which was numbered as Complaint Case No.152 ( C) of 2007, alleging therein that the petitioner along with some unknown accused persons had committed offence under Section 392 of the Indian Penal Code. It was alleged by the complainant that at about 8 O’clock in the morning, while he was going to his office, he was intercepted by the petitioner and some unknown persons and thereafter it was alleged that 2 the petitioner asked the complainant as to why he was not being appointed on the post of Panchayat teacher. It was clarified by the complainant that since the petitioner had not appeared in the counseling, his appointment was difficult. Thereafter, it was alleged that the petitioner took out a pistol from his bag and putting the same on his chest directed unknown accused persons to snatch all the articles from the complainant and thereafter in the said occurrence, accused persons looted relevant documents relating to appointment of the teachers. It was also alleged that in the said occurrence, accused persons looted Rs.500/- from him and his wrist watch was also snatched. After filing of the complaint, enquiry was conducted and by the impugned order, the learned Magistrate instead of taking cognizance under Section 392 of the Indian Penal Code has taken cognizance of the offence under Section 379 of the Indian Penal Code. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. Earlier notice was issued to Opp.Party no.2 and thereafter, Opp.Party no.2 had appeared through his Advocate. On 27.11.2008 none appeared on his behalf and the case was admitted for hearing. While admitting , it was directed that in the meanwhile further proceedings in Complaint Case No.152 ( C) of 2007 pending in the court of learned Judicial Magistrate, Buxar , shall remain stayed. Today again at the time of hearing none appeared on behalf of Opp.Party no.2. 4. Sri Viveka Nand Pathak, learned counsel for the petitioner, while questioning the order of cognizance as well as initiation of proceeding against the petitioner, at the very outset has submitted that the present complaint was filed maliciously as well as in a well designed 3 manner. It was submitted that the petitioner being an unemployed had applied for the post of Panchayat Teacher and he had secured respectable marks in the counseling. In the counseling, it was alleged that Opp.Party no.2 being Mukhiya of Kharha Tand Panchayat was the Chairman of the appointment / counseling committee. It was alleged that despite the fact that the petitioner was initially selected, the Opp.Party no.2, by committing interpolation, in place of petitioner had inserted the name of other candidate, who was having lesser marks than the petitioner. After noticing the irregularities/ interpolation committed by Opp.Party no.2, the petitioner raised serious objection and filed number of complaints before the concerned authorities and as per his complaint the matter was got inquired by the Nodal Officer i.e. the Director, Education Department, Govt. of Bihar, Patna. Learned counsel for the petitioner has heavily relied on Annexure-12 to the present petition, which is a communication made by Sri S.Das, Director, Education Department, Govt. of Bihar,Patna addressed to the Block Development Officer, Simari ( Bhojpur). It was submitted that even the Director, Education Department, Govt. of Bihar, Patna in its enquiry had found that in accordance with law, the petitioner was entitled to be appointed as the Panchayat Teacher. It was pointed out that during the enquiry, it was found that the person having lesser marks was appointed in his place. It was further submitted that time without number during the enquiry, Opp.Party no.2 was directed by the concerned Officer to remain present along with the records, but Opp.Party no.2 never appeared along with the original record. However, finally it was held that the petitioner was entitled for appointment as Panchayat Teacher. It was further submitted that once the District Magistrate had 4 directed for taking stringent action against the responsible person. In support of his stand learned counsel for the petitioner has referred Annesxure-5 to the present petition, which is a typed copy of representation filed by the petitioner before the District Magistrate, Buxar. It was submitted that in the margin of the said letter, the District Magistrate had directed for conducting an enquiry and to ascertain who was the person responsible for such irregularities. Annexure-5 to the present petition is the typed copy of the letter. It was submitted that at the same time, Opp.Party no.2 has implicated the petitioner as an accused and Opp.Party no.2 has also taken a defence that the original record was snatched by the petitioner in the said occurrence. Accordingly, it has been prayed to set aside the order of cognizance. 5. Sri A.M.P. Mehta, learned Addl.Public Prosecutor appearing on behalf of the State even in absence of learned counsel for Opp.Party no.2 has vehemently opposed the prayer of the petitioner. It was submitted that this Court may not interfere with at the initial stage i.e. at the stage of cognizance of the case and, accordingly, it has been prayed to reject the present petition. 6. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on record. In the complaint petition, the complainant had accepted that the complainant was asked by the petitioner as to why he was not appointed. The complainant in his S.A. on the question put by the court has admitted that he was Chairman of the counseling committee of the area being Mukhiya of Kharha Tand Panchayat, Buxar. 7. In course of hearing, it was not required to examine all those 5 documents enclosed with the present petition. However, Annexure-12 is a communication made by the Director, Education Department, Govt. of Bihar,Patna and a copy of the same was also marked to the petitioner, whereas the said communicated was addressed to the Block Development Officer, Simari ( Bhojpur). After going through the contents of Annexure- 12, it appears that the Director, Education Department, Govt. of Bihar, Patna had noticed that irregularities were committed in the appointment of Panchayat teacher and the Director, Education Department, Govt. of Bihar, Patna had found that in accordance with law, the petitioner was entitled to be appointed as Panchayat teacher. 8. From the facts and circumstances, which has emerged from perusal of the materials available on record, the Court is satisfied that the present complaint was filed by Opp.Party no.2 against the petitioner maliciously and with oblique motive. Accordingly, the Court is of the opinion that allowing the prosecution of the petitioner on such allegation will amount to allowing abuse of the process of the court and, as such, it is necessary to interfere even at the initial stage of the cognizance that too while exercising power under Section 482 of the Code of Criminal Procedure. Accordingly, the order dated 26.6.2007 passed by the learned Judicial Magistrate, 1st Class, Buxar in Complaint Case No.152 (C) of 2007 is hereby set aside and the petition stands allowed. Patna High Court, Patna Dated : the 9th November,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)