IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44472 of 2007 1. SHIV NARAYAN RAM , SON OF RAMJI RAM, RESIDENT OF VILLAGE-KAKRAIT, POLICE STATION- DHINA, DISTRICT- CHANDAULI (UTTAR PRADESH); PRESENTLY OFFICER INCHARGE OF KANGLI POLICE STATION IN THE DISTRICT OF WEST CHAMPARAN. 2. SYED WAZI AHMAD, SON OF LATE ABDUL RASHID, RESIDENT OF VILLAGE- BARUI, POLICE STATION- SHEIKHPURA, DISTRICT- SHEIKHPURA; PRESENTLY POSTED AS A.S.I. CHAPRA MUFASSIL POLICE STATION IN THE DISTRICT OF SARAN. Versus 1. THE STATE OF BIHAR 2. MADHAV PRASAD SINGH, SON OF LATE RAM LAKHAN CHOUDHARY, RESIDENT OF VILLAGE-RAMGARHA, POLICE STATION-AVTARNAGAR, DISTRICT- SARAN AT CHAPRA. ----------- 3 16.02.2010 Heard learned counsels for the petitioners, the complainant and the State. While issuing notice to the complainant, this Court vide order dated 15.1.2009 recorded as under: “Learned counsel for the petitioner submits that on 19.7.2005 the raid on the house of the petitioner led to the arrest of his grandson and seizure of a double barrel gun in connection with Avtar Nagar P.S. case no. 69 of 2005 dated 20.07.2005. The seizure list describes the number of gun as no. 14956C/4Y2002. The O.P. No.2 then filed a Complaint Case no. 1762 of 2005 on 27.7.2005 for an occurrence of 19.7.2005 stating that the petitioners unlawfully took away his double barrel licensed gun. The licence for the gun sought to be relied upon by the O.P. No.2 in the complaint case bears endorsement of his ownership of a double barrel licensed gun no. 14956C/4Y2002 which corresponds to the weapon seized in the police raid and F.I.R.” Petitioners, who are police personnel, assail the order dated 13.3.2007 passed by the learned S.D.J.M., Saran in Complaint Case no. 1762(C) of 2005, whereby cognizance has 2 been taken against them under Sections 447, 504 and 379 of Indian Penal Code. The case of the complainant, in brief, is that on the relevant date, the police team including the present petitioners raided the house of the complainant, and arrested his grandson namely Aditya Sharma. It is further the case of the complainant that they also forcibly seized one double barrel licensed gun from the house. Said gun stood recorded in the name of complainant. On these allegations, it has been alleged that they have committed theft of D.B. Gun and other offence(s). Learned counsel drew attention of the court to the F.I.R. (Annexure-3) wherefrom it appears that earlier to the present complaint, a case was lodged against the grandson of the petitioner and others for an offence punishable under Section 307 of Indian Penal Code. Learned counsel drew attention of the Court to the seizure memo (Annexure- 4) in order to show that the said gun was seized under a duly prepared seizure memo, and is, thus, part of the investigation. On the strength of these facts, it is submitted that no case under Section 379 is made out particularly when there is no allegation that the petitioners took away the said gun for his/their own use. It is, thus, submitted that this belated complaint, initiated at the instance of the grandfather of aforesaid Aditya Sharma, is nothing but abuse of the process of the Court. It has been lodged apparently for ulterior reasons. Learned counsel further contended that these are the bona fide acts on the part of the petitioners which they are obliged to discharge in course of investigation of a cognizable 3 offence(s). Learned counsel for the complainant opposed the prayer. It is contended that during the relevant time, petitioner no. 1 was not the officer-in-charge of the police station under which the occurrence had taken place, and as such there was no occasion for him to be there and forcibly taking possession of the D.B. Gun. It is submitted that the case is at its initial stage and the order impugned warrant no interference. This Court, having considered the submissions made on behalf of the parties, and after going through the materials placed on record, is of the view that even going by the allegations read in the backdrop of facts highlighted by the petitioners and taken note hereinabove, the steps/actions taken by the police personnel can be definitely said to be bona fide acts. They appears to have acted in due discharge of their duty in criminal proceeding. The police personnel cannot be allowed to be prosecuted in the manner in which the complainant wants to prosecute them. Prosecution in such circumstance would be persecution. This court is, thus, convinced that the present proceeding shall be sheer abuse of the process of the court, and requires interference. .Accordingly, the application is allowed, and the order dated 13.3.2007 passed by the learned S.D.J.M. , Saran in Complaint Case no. 1762(C) of 2005 is quashed. pkj ( Kishore K. Mandal, J. )