IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3642 of 2009 Md. Feda Hussain, son of Md. Asagar Miyan, resident of Mohalla-Bichali Mohalla, District-Jehanabad. ………..Petitioner. Versus 1. The State of Bihar. 2. Md. Jaheer Alam, son of Late Hussaine Mian, resident of Belhariya, P.S. Tekari, District-Gaya. ……..Opposite Parties. For the petitioner :- Mr. Gasaman Arun. Advocate. Mr. Dharmendra Nath Mishra, Advocate. For the O.P.No.2 :- Mr. Tej Narayan Singh, Advocate. For the State :- Mr. Hirday Pd. Singh, A.P.P. ----------- 3. 02.12.2010. Heard. This criminal miscellaneous petition is against the order of taking cognizance dated 18. 06. 2008 passed in Complaint Case No. 420 of 2008/1091 of 2008, for which cognizance has been taken against the petitioner for offences under Sections 323, 380 and 504 of the Indian Penal Code. The prosecution case as alleged by the complainant Md. Jaheer Alam that his son Md. Jakir Hussain remained with his wife in his sasural at Jehanabad separately from his father taking his full share of the properties and it is alleged that on 18. 03. 2008 at 7.30 A.M. that accused persons named in the complaint petition including the petitioner's son of the complainant Md. Jakir Hussain, daughter-in-law Asamin Khatoon, Md. Feeda Hussain, the father of 2 Asmina Khatoon, Md. Imran, Md. Mister, the sons of Feeda Hussain, Maroon Khatoon, the mother of Asmin Khatoon and Ladaly Khatoon, daughter of Feeda Hussain came into the house of the complainant and abused and demanded key of almirah at the point of revolver and took away Rs. 30,000/- and accused nos. 3 to 7 started assaulting with fist and slaps and snatched the watch and golden chain from the said complainant. The claimant was examined on S.A. other witness examined and processes were issued against the petitioner including Md. Jakir Hussain, Asamin Khatoon and other for offences under Sections 323 and 380 of I.P.C. Learned counsel for the petitioner however, contended that prior to the institution of this case, a case was filed bearing Complaint Case No. 637/2007 by Asamin Khatoon, daughter-in-law of the this complainant alleging therein that she was married with Jakir Hussain the son of Md. Md. Jaheer Alam, the complainant of the counter case. It is alleged that after marriage, the father of this Asamin Khatoon, who is complainant in Complaint Case No. 637/2007 used to live with her and went to earn at Maharashtra, who used to send money order. She has also alleged that 3 accused persons used to subject her cruelty and thrown her out of the matrimonial house. However, in case filed by Asamin Khatoon against her father-in-law cognizance was taken on 21. 01.2008, hence alleged that present case filed in retaliation the Complaint Case No. 420/2008 filed by Md. Jaheer Alam against Asamin Khatoon, her husband, father, mother, sister and brother. Learned counsel for the petitioners however, submits that present complaint case out of which this criminal miscellaneous arises has been filed by Md. Jaheer Alam, in retaliation to the case filed by the Asamin Khatoon just to take vengeance against his son, dauther-in-law and the father, mother, brothers and sisters of his daughter-in-law. It has further been contended that it appears patently absurd inherent improbability that, son along with wife, father-in-law and mother-in-law, brother-in- law and sister-in-law will go to commit theft in the house of his father and hence it has been submitted that prosecution has not been launched securing end of justice rather it has been filed to spitting vengeance at the accused and to satiate malicious intent of the complainant to satiate vengeance. Learned counsel for the opposite party 4 however, contended that there is speaking allegation against these petitioners for indulging in criminal activity of committing theft at the point of revolver for which the complaint has been filed. It has further been contended that Asamin Khatoon had earlier filed a case against her father-in-law. In her statement, she has stated that accused persons who are father-in-law and others had not give share of her husband and if share is given then she will compromise. Hence from the respective submissions of the parties, it is apparent that both the parties are relations and one side is son and daughter-in-law and her naihar people and other side is father of the son. From the submissions of the parties itself that matter concerned with the share of the properties and civil litigation has been substituted by the criminal litigation between the parties. However, jurisdiction of this Court under Section 482 of Cr.P.C. is well known that which is sparingly utilised or exercised even in the rare case particularly for the quashing prosecution. However, if it appears that civil litigation is being substituted by the criminal litigation of criminal code are being utilised in order to spitting at the accused and to satiate the malicious intent and not for the purpose of seeking 5 justice, then in that case High Court is required to interfere exercising its jurisdiction under Section 482 of Cr.P.C. However, having regard to the allegation that son along with his wife followed in association with father-in-law, mother-in-law, brother-in-law and sister- in-law came to snatch and commit theft and alleged that they pointed revolver threatened him and took away Rs. 30,000/- itself appears to be patently absurd and inherently improbable, particularly of the fact that earlier a case was instituted by Asamin Khatoon and then the case apparently appears to be in retaliation of the case to spitting vengeance. However, it appears that learned Magistrate while taking cognizance did not applied his mind to the facts and circumstance of the complaint that the complainant has filed a case and are near relation and have mechanically proceeded to record statement without applying his judicial mind to the materials brought on record and proceeded to order to summon the accused. However, it appears that learned Magistrate while passing summoning order without proper application of his judicial mind. However, it is to be born in mind that summoning persons encroaches personal liberty require intelligent enquiry to search out 6 the truth. However, it appears that learned Magistrate without due enquiry and proper application of his judicial mind, proceeded in mechanical manner as routine work. This view find support in decision reported in 2008 (1) PLJR 723. Hence, under the facts and circumstances of the case, order of taking cognizance is hereby set aside and the petition is allowed. m.p. ( Gopal Prasad, J.)