IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.24084 of 2008 1. Dr. Baidya Nath Prasad Singh, son of Late Banke Bahadur Singh. 2. Bipul Prakash Singh, son of Dr. Baidya Nath Prasad Singh. Both are resident of village-Jangalia Thawe Road, Gopalganj Ward No.12, P.S. + District-Gopalganj. ……………………………………………….........Petitioners. Versus 1. The State Of Bihar. 2. Samshul Hassan, son of Late Ali Hassan, resident of Village-Chourawan, P.S. Gopalganj, presently residing at Thawe Road, P.S. + District-Gopalganj. …………………………………………..Opposite Parties. ---------------------------------- For the Petitioners : M/s. Manan Kumar Mishra, Senior Advocate and Ajay Dubey, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ----------------------------------- O R D E R 5. 15.11.2011. The petitioners seek quashing of the order dated 28.11.2001 passed in Complaint Case No.1260 of 2001 by the court of Sri S.D. Dwivedi, Judicial Magistrate, Gopalganj, summoning the accused persons including the petitioners under Section 204 of the Code of Criminal Procedure, on inquiry, finding prima facie case under Sections 323, 448, 427 and 504 of the Indian Penal Code and also the order dated 1.2.2006 passed by the Additional 2 Sessions Judge, Fast Track Court No.III, Gopalganj, dismissing the Criminal Revision No.437 of 2002 as preferred against the aforesaid summoning order dated 28.11.2001. 2. The facts, leading to this application, are that the complainant-opposite party no.2, Samshul Hassan, filed the complaint petition, numbered as Complaint Case No.1260 of 2001, against the four accused persons including the petitioners alongwith 10 unknown police personnels, with the contention that his house is situated at Plot No.754 of Khata No.65. The accused-petitioner no.1, Dr. Baidya Nath Prasad Singh, has encroached his land of the said plot and has filed the Title Suit No.191 of 1994. In the said Title Suit after receiving of the Commissioner’s report and hearing the counsel of both the parties, the court vacated the order of status quo on 28.7.2001. Thereafter, on 1.8.2001, he was doing the work of affixing the four windows in the first floor in the house. At that time, the petitioner no.1, Dr. Baidya Nath Prasad Singh, made protest. Then he showed the court’s order dated 28.7.2001 vacating the injunction order but in spite of that the petitioner no.1, Dr. Baidya Nath Prasad Singh, gave 3 threatening to stop the work, otherwise the four windows will be thrown away. At the time of occurrence, the petitioner no.1, Dr. Baidya Nath Prasad Singh, alongwith other accused, namely, Bipul Prakash Singh, Satya Narayan Kurmi and R.K. Poddar, Officer-In-Charge of Gopalganj Police Station alongwith 10 unknown police personnels reached at the first floor of the house and he was slapped and abused giving threatening and removed the windows. Due to that reasons, he suffered a loss of Rs.2000/-. As such, the accused persons are liable for disobeying the court’s order dated 28.7.2001. 3. After filing of the complaint petition by the complainant-opposite party no.2, Samshul Hassan, on inquiry under Section 202 of the Code of Criminal Procedure, the court of Sri S.D. Dwivedi, Judicial Magistrate, Gopalganj, summoned the accused persons including the petitioners, named in the complaint petition, finding prima facie case under Sections 323, 448, 427 and 504 of the Indian Penal Code through the order dated 28.11.2001. Being aggrieved and dissatisfied with the aforesaid order, the petitioner and one other co-accused, Satya 4 Narayan Kurmi, filed the Criminal Revision No.437 of 2002, which was also dismissed by the court of Additional Sessions Judge, Fast Track Court No.III, Gopalganj, on 1.2.2006. 4. Learned counsel appearing on behalf of the petitioners made submission that the accused-petitioner no.1, Dr. Baidya Nath Prasad Singh, is the renowned Orthopedic Surgeon and is practicing at Gopalganj and he is also associated with several N.G.Os. The petitioner no.1, on purchasing the eastern portion of plot no.754 measuring an area of 3 Kathas 5 ½ Dhoors and plot no.755, contiguous to the east of the plot no.754, he constructed the house and Nursing Home. The complainant-opposite party no.2, Samshul Hassan, also purchased 1 Katha and 12 ½ Dhoors land from plot no.754 in the west and started construction without leaving three feets land towards the east according to Panchnama. Thereafter, the petitioner no.1, Dr. Baidya Nath Prasad Singh, finding no option filed the Title Suit No.191 of 1994 and the complainant-opposite party no.2 also filed Title Suit No.227 of 1994 and both the Title Suits were amalgamated. In Title Suit No.191 of 1994 filed by the petitioner no.1, Dr. Baidya Nath Prasad 5 Singh, the Munsif-III, Gopalganj, had granted injunction restraining the complainant-opposite party no.2 for making any construction. The order of maintaining the status quo dated 1.3.1997 was vacated by the Subordinate Judge-IV, Gopalganj, on 28.7.2001. Thereafter, the petitioner no.1, Dr. Baidya Nath Prasad Singh, filed the Miscellaneous Appeal, numbered as Miscellaneous Appeal No.24 of 2001, in the court of the District Judge, Gopalganj, who vide order dated 31.7.2001 stayed the order of the Subordinate Judge directing the complainant-opposite party no.2 to maintain the status quo and, as such, on the alleged date of occurrence, there was injunction order and when the complainant-opposite party no.2, started construction the police forbade to make construction on the basis of the order of the learned District Judge and due to that reasons with oblique motive the complainant-opposite party no.2 has filed the present complaint petition against the petitioner no.1, his son, petitioner no.2, Compounder, Satya Narayan Kurmi and R.K. Poddar, the then Officer- In-Charge of Gopalganj Police Station alongwith 10 unknown police personnels. It has also been submitted that the complainant-opposite party no.2, has also filed several 6 criminal cases against the accused-petitioner no.1, Dr. Baidya Nath Prasad Singh, only with a view to harass him, so that he may withdraw the Title Suit. 5. On the other hand, learned A.P.P. for the State, submitted that there is no illegality in the order dated 28.11.2001 passed by the Judicial Magistrate, Gopalganj, whereby the petitioners and other accused have been summoned, on inquiry, finding prima facie case under Sections 323, 448, 427 and 504 of the Indian Penal Code and also in the revisional order dated 1.2.2006 passed by the Additional Sessions Judge, Fast Track Court No.III, Gopalganj, whereby the summoning order has been affirmed. 6. The allegation as appears from the complaint petition of the complainant-opposite party no.2, Annexure- ‘1’ to this application, is that after vacating the injunction order in the Title Suit No.191 of 1994 on 28.7.2001, when the complainant-opposite party no.2 started cleaning the first floor of the house affixing the four windows, then he was forbade by the accused-petitioner no.1, Dr. Baidya Nath Prasad Singh and his son, Bipul Prakash Singh, his Compounder, Satya Narayan Kurmi and R.K. Poddar, 7 Officer-In-Charge of Gopalganj Police Station. In spite of showing the vacation of the injunction order dated 28.7.2001, they removed four windows of the house. The complainant-opposite party no.2 was also abused and slapped at that time. 7. In a catena of judgments, the Hon’ble Apex Court held that the jurisdiction under Section 482 of the Code of Criminal Procedure could be exercised very sparingly in some rare cases to quash the prosecution. In the case of State of Haryana and others Vs. Bhajan Lal and others {A.I.R. 1992 (SC) 604}, the Hon’ble Apex Court held that the power under Section 482 of the Code of Criminal Procedure, could be exercised either to prevent to abuse of the process of any court of law or otherwise to secure the ends of justice detailing the seven categories of cases wherein power should be exercised, out of which one is where the criminal proceeding is maliciously attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 8. Admittedly, in Title Suit No.191 of 1994 filed 8 by the accused-petitioner no.1, Dr. Baidya Nath Prasad Singh, injunction order was passed to restrain the complainant-opposite party no.2 to make any further construction and the said order was vacated on 28.7.2001 as alleged in the complaint petition. Annexure-‘2/A’ to this application shows that the Miscellaneous Appeal No.24 of 2001 filed on behalf of the accused-petitioner no.1, Dr. Baidya Nath Prasad Singh against the complainant- opposite party no.2, Samshul Hassan, was admitted, the Lower Court Record was called for and notice was directed to be issued to the respondent, complainant-opposite party no.2, with an order to maintain status quo till the hearing of the injunction and stay application. As such, the injunction order dated 1.3.1997 passed in Title Suit No.191 of 1994 as vacated on 28.7.2001 was continued vide order dated 31.7.2001 passed by the Sessions Judge, Gopalganj in Miscellaneous Appeal No.24 of 2001. Therefore, no question arises for disobeying the order of the court as alleged in the complaint petition as the order of status quo was in existence on the alleged date of occurrence. 9. In that view of the matter, the complaint petition filed by the complaint-opposite party no.2 in which 9 the accused-petitioners have been summoned through the order dated 28.11.2001, does not appear to be filed for the purpose of seeking the ends of justice, rather the same appears to be filed with oblique motive for wreaking vengeance on the accused-petitioners due to dispute and grudge. 10. Due regard being had to the facts and the circumstances of the case, the order 28.11.2001 passed by the court of Sri S.D. Dwivedi, Judicial Magistrate, Gopalganj, in Complaint Case No.1260 of 2001 and the order dated 1.2.2006 passed by the Additional Sessions Judge, Fast Track Court No.III, Gopalganj, in Criminal Revision No.437 of 2002, with respect to the petitioners, are hereby quashed and this application is allowed. P.S./A.F.R. (Rajendra Kumar Mishra, J)