CRIMINAL MISCELLANEOUS No.51263 OF 2007 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. JAGDISH LAL, SON OF BHAGWAN DAS SAHGAL 2. ROHIT SAHGAL, SON OF JAGDISH LAL 3. SUBHASH SAHGAL 4. PAPPU SAHGAL BOTH SON OF BHAGWAN DAS SAHGAL, ALL RESIDENTS OF POCKET A-3/156- 157 SECTOR-11, ROHINI, P.S. PRASHANT VIHAR, DISTRICT NEW DELHI. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. SNTOSH KUMAR, SON OF LATE DINESHWAR PRASAD SINGH, RESIDENT OF VILLAGE KARPOORIGRAM, P.S. SAMASTIPUR MUFFASIL, DISTRICT SAMASTIPUR. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S Jitendra Singh, Sr. Adv. Shankar Kumar Thakur,Adv. Kamal Kishor Singh, Adv. For O.P. No.2 : Mr. Abhay Shankar Singh, Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Four petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 15.5.2007 passed by Judicial Magistrate, Samastipur in Complaint Case No.355 of 2006 (T.R. No.2476 of 2007). By the said order, learned Magistrate has taken cognizance of the offences under Sections 384, 379 and 504 of the Indian Penal Code. 2 2. Short fact of the case is that opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Samastipur, which was numbered as Complaint Case No.355 of 2006 arraying the petitioners as accused on accusation of commission of offences under Sections 420, 384, 386, 342, 387, 379, 504/34 of the Indian Penal Code. In complaint petition, there are two types of allegations. In first allegation, it was alleged that petitioners had intruded into the house of the brother-in-law of the complaint at Delhi and thereafter, they had forcibly taken away several ornaments of the complainant and second part of allegations is that the accused persons came to the house of the complainant at Samastipur and thereafter, the accused persons persuaded the complainant to go to Delhi for re-joining his service. It was disclosed that complainant was earlier an employee of the petitioners, who were dealing in Auto Parts Trading. On persuasion of the petitioners, the complainant along with them started for Samastipur Railway Station on Tempo, but in the midst, they got down from the tempo and surrounding the complainant 3 armed with pistol compelled the complainant to put signature on blank and stamp papers. In the aforesaid occurrence, it was further disclosed that accused persons forcibly took mobile of the complainant. The cost of same was about Rs.21,000/-. The complainant was also assaulted. On aforesaid allegations, complaint was filed. After conducting enquiry, the learned Magistrate, by its order dated 28.8.2006/29.8.2006 dismissed the complaint petition under Section 203 of the Code of Criminal Procedure. Against the order of rejection of complaint petition, the complainant preferred a revision vide Cr. Revision No.368 of 2006. The learned Sessions Judge, Samastipur, by its order dated 24.11.2006, quashed the order of rejection of complaint petition and remitted back the same to the learned Magistrate to pass fresh order in accordance with law and assigning reason. The ground for quashing of the order of rejection of the complaint petition was that the learned Magistrate, while rejecting the complaint petition, had not assigned reason. After the case was remitted back, the learned Magistrate, by the impugned order i.e. order 4 dated 15.5.2007, took cognizance of offences under Sections 384, 379 and 504 of the Indian Penal Code. 3. Aggrieved with the order dated 15.5.2007 i.e. the order of cognizance, the petitioners approached this Court by filing the present petition. On 2.2.2009, the case was admitted for hearing. At the time of admission itself, opposite party no.2 had appeared through his advocate. While admitting, it was directed that in the meantime, further proceedings in Complaint Case No.355 of 2006 pending in the court of Judicial Magistrate, Samastipur shall remain stayed. The order of stay is still continuing. 4. Shri Jitendra Singh, learned Senior Counsel appearing on behalf of the petitioners, at the outset, submitted that all the four petitioners are closely related to each other. It was submitted that the complainant, as admitted, was employed with the petitioners in Auto Part Trading and he was looking after the accounts work. It was submitted that in the capacity of Accountant, the complainant fraudulently transferred huge 5 amount from the account of petitioners to his own account and, accordingly, the complainant had mis-appropriated about Rs.10,00,000/- of the four petitioners from different account. After noticing the said fact, the petitioner no.1 had given a written information to the S.H.O. (Station House Officer), Karol Bagh, New Delhi on 2.4.2006. Subsequently, an F.I.R. was lodged against the complainant and during investigation, allegation against the complainant-opposite party no.2 was found true and thereafter, charge sheet was submitted against the complainant by the Delhi police on 14.5.2008 in Karol Bagh P.S. Case No.561 of 2006 dated 28.11.2006. Learned Senior Counsel has referred to Annexure-7 to the petition, which is a copy of charge sheet submitted against the complainant. While referring to Annexure-7, it was pointed out that the complainant in the said case was declared permanent absconder and during investigation, it was corroborated that the complainant had mis-appropriated Rs.10,00,000/- of the petitioners. Learned Senior Counsel has also referred to Annexure- 8/1 to the supplementary affidavit, which is 6 a copy of order dated 3.4.2008 whereby prayer for anticipatory bail of opposite party no.2 was rejected by the learned Additional Sessions Judge, Delhi. On the aforesaid facts, it was submitted that the present complaint was filed by the opposite party no.2 maliciously and with oblique motive. Learned Senior Counsel further submits that once the revisional court, after setting aside the order of rejection of the complaint case by the learned Magistrate, had remitted back the matter to the Magistrate for passing fresh order assigning the reason, it was mandatory on the part of the learned Magistrate to assign reason. It was submitted that on perusal of the impugned order i.e. order of cognizance, it is evident that the learned Magistrate has assigned no reason. He has reproduced the same order. Only the sentence ‘rejection’ has been substituted as order of cognizance. On aforesaid grounds, it was submitted that the order of cognizance and entire prosecution against the petitioners may be set aside. 5. Shri Abhay Shankar Singh, learned counsel appearing on behalf of opposite party 7 no.2 has vehemently opposed the prayer of the petitioners. Learned counsel for the opposite party no.2 submits that from the contents of the complaint petition itself, at least second part of the allegation is sufficient for constituting offences as alleged by the complainant. It was further submitted that the petitioners along with present petition as well as supplementary affidavit have brought on record number of documents, which are not required to be looked into by this Court at this stage. It has further been submitted that at the time of cognizance, this Court may not examine those documents. Those documents, according to Mr. Singh, are required to be looked into by the concerned court at appropriate stage. In support of his stand, Shri Singh has relied on a single Bench judgment of this Court reported in 2008(3) PLJR 553 (Rina Devi & others vs. The State of Bihar & another). He has specifically referred to paragraph-7 of the judgment. It was submitted that time without number, it has been reiterated that at the stage of cognizance, the High Court should remain loath and may not interfere at the 8 initial stage. In similar circumstance, Shri Singh has also referred to an another single Bench judgment of this Court reported in 2008(3) PLJR 565 (Persuram Koeri & another vs. The State of Bihar & another). He has referred to paragraph-8 of the judgment. In some and substance, it has been submitted by Shri Abhay Shankar Singh, learned counsel for opposite party no.2 that this court may refrain from interfering with the order of cognizance and matter may be left to be decided by the concerned court. Accordingly, it has been prayed to reject the present petition. 6. Mrs. Indu Bala Pandey, learned Additional Public Prosecutor for the State has supported the stand taken by Shri Abhay Shankar Singh, learned counsel for the opposite party no.2. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. After going through the contents of the complaint petition, prima facie, the court is of the opinion that allegation appears not to be probable. Even the complainant himself has 9 admitted that the accused persons, who are the petitioners, are resident of Delhi and the complainant was his employee. For the purposes of obtaining signature of the complainant, it is difficult to conceive by this Court, that all the four petitioners had come from Delhi and visited the resident of the complainant, which is in the district of Samastipur, Bihar and thereafter, in the native place of complainant, they had dared to commit loot of the mobile of the complainant and took his signature of blank as well as stamp papers. Besides this, the falsity of the allegation was accepted by the learned Magistrate, while he had conducted enquiry and thereafter, by giving some plausible reason, had rejected the complaint petition under Section 203 of the Code of Criminal Procedure. However, same was set aside by the revisional court. The revisional court, while remitting back the matter, had given specific direction to assign reason. Once the matter was remitted back to the Magistrate with a direction to assign reason, it was mandatory on the part of the learned Magistrate to give some reason. However, in 10 the present case, after going through the impugned order, it is evident that the learned Magistrate has not given any reason, which is less than the reasons assigned earlier, while rejecting the complaint petition. The court is of the opinion that in the present case, the learned Magistrate was required to assign reason. Once on the same fact, the learned Magistrate was of the view that the allegations were not true, he was not required to pass the impugned order without giving some reason. Moreover, on the basis of Annexure-7 i.e. copy of charge sheet, it is not in dispute that the complainant himself was made accused in a case of commission of fraud in the account of the petitioners and misappropriating huge amount. In the said case, he was charge sheeted showing as permanent absconder. After going through the materials available on record, I am of the view that the present complaint was filed maliciously and as such on the ground of malicious prosecution, it is a fit case for interference at initial stage i.e. stage of cognizance. 8. Accordingly, the order of 11 cognizance dated 15.5.2007 passed by Judicial Magistrate, Samastipur in Complaint Case No.355 of 2006 (T.R. No.2476 of 2007) as well as entire criminal proceeding in the said complaint, so far as petitioners are concerned, is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 26.11.2010 N.A.F.R./N.H.