IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.1992 of 2009 SARDAR SWARN SINGH BAGGA, FATHER’S NAME – LATE LAL SINGH BAGGA, RESIDENT OF MOHALLA – CHITKOHARA BAZAR, PANJABI COLONY, P.S – GARDANIBAGH, DISTRICT – PATNA. ................ PETITIONER. Versus 1. THE STATE OF BIHAR. 2. KEDAR CHOUDHARY, RESIDENT OF MOHALLA – CHITKOHARA BAZAR, PANJABI COLONY, P.S. – GARDANIBAGH, DISTRICT – PATNA. ............... OPP. PARTIES. ----------- 07/ 02.02.2011 This is a petition for quashing the order dated 20.11.2000 passed by the C.J.M, Patna in Complaint Case No. 218 (C) of 2000 by which summon has been ordered to be issued against accused person after taking cognizance for offence under Sections 354, 323 and 380 of the Indian Penal Code. 2. The prosecution case as alleged therein that while the complainant was sitting in her house then the accused persons six in numbers as mentioned in the complaint petition have entered into the house breaking open the door and the accused Sardar Swarn Singh Bagga tried to untie her Saree and his three sons thrown her on the Chauki and tried to rape her. On Halla the daughter-in-law, Punam Rani came out and seeing her in half naked stage make a Halla then Sardar Swarn Singh Bagga and his son flee away with gas cylinder, 2 wrist watch and golden chain. The motive for the occurrence is alleged that a Title Suit bearing Title Suit No. 156 of 1993 is going on in the court of Sub-Judge XV, along with the elder brother of the complainant and Sardar Khajan Singh with regard to the house which is the place of occurrence and it is alleged that Sardar Khajan Singh had send the accused persons to vacate the land and Sardar Swarn Singh Bagga and his sons used to file cases without reason and it is alleged that it was threatened to vacate the house within twenty four hours else they will be killed. 3. On the complaint petition the complainant was examined on oath and after considering the solemn affirmation of the complainant and the statement of witnesses, the cognizance has been taken. 4. Learned counsel for the petitioner, however, contended that no offence is made out. It has further been contended that the allegations made against the petitioner is absurd and improbable which is repugnant to normal common sense when the complainant itself a lady of more than 60 years old and the petitioner who is main accused along with his three sons commit rape and further contended that the allegation has been made to spit vengeance as a civil dispute 3 is going on between the complainant and a co-accused Sardar Khajan Singh which is also an accused but not the petitioner and has prayed that the condition 5 and 7 of the decision reported in 1992 SC 604 (State of Haryana & Ors. Vs. Bhajan Lal & Ors.) is attracted and hence the order issuing process appears to have been passed without due application of mind by the Magistrate and hence requires to be quashed and has placed reliance upon decision reported in 2009 (1) CCSC 196 (Eicher Tractor Ltd. Vs. Harirar Singh) and 2007 (3) BLJ 333 (Vijay Kumar & Ors. Vs. State of Bihar). 5. Learned counsel for the State, however, opposes the prayer on the ground that the allegations made make out an offence it is the opinion of the Magistrate for issuing process which shall prevail for issuing process. 6. However, taking into consideration the position of law as settled by the Supreme Court in Bhajan Lal’s case reported in 1992 SC 604 (Supra) which has laid down 7 conditions for consideration for inquiry Section 482 of the Cr.P.C and out of the 7 conditions, condition no. 5 and 7 mentions that where the allegation is made in the FIR is so absurd and inherently improbable on the basis of which no prudent person can ever reach to a just conclusion that there is 4 sufficient ground for proceeding against the accused persons and condition no. 7 mentions that where a criminal proceeding is manifestly attended with mala fide or proceeding is maliciously instituted with an ulterior motive for wreck vengeance on the accused and with a view to spit him due to private and personal grudge. 7. However, the petitioner is stated to be 70 years old has been charged for committing an attempt of rape or to outrage the modesty of a women aged 60 years along with his son and the occurrence is alleged to have been done to oust the complainant from the house which is the place of occurrence for which a Title Suit is going on between the complainant and co-accused Sardar Khajan Singh. Sardar Swarn Singh Bagga, the petitioner is the next door neighbour of Sardar Khajan Singh who had sent the accused persons to vacate the house. 8. However, it is true that the allegation makes out an offence and this Court in exercise of power under Section 482 of the Cr.P.C has no jurisdiction to examine the correctness or otherwise of the allegation and the uncontroverted allegation make out a prima facie offence and further the exercise of jurisdiction under Section 482 of the 5 Cr. P. C are requires to be exercised sparingly. However, there is allegation of abuse and assault and outrage the modesty and taking away the articles dishonestly and the motive of the occurrence is threat to vacate the house and however, when allegation makes out an offence and witness support in enquiry to make out prima facie case then mala fide of informant would be secondary importance cannot be the basis of quashing. 9. The decision reported in 2009 (1) CCSC 196 (Supra) is for taking cognizance under Sections 420, 467 and 471 of the Indian Penal Code where the summons issued were not served and warrant of arrest and process under Section 82 issued and hence is not applicable to the facts and circumstances of the case. In case reported in 2007 (3) BLJ 333 (Supra) complaint lodged was sent for lodging FIR and police submitted final form as case palpably false and cognizance taken on protest-cum-complaint without intelligent enquiry and hence not applicable to the fact and circumstance of the case. However, at this stage this court cannot take into consideration the defence of the accused, hence, taking into consideration the facts and circumstances, I do not find fit to interfere with the impugned order at this 6 state and hence the petition is dismissed. Kundan (Gopal Prasad, J.)