IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50961 of 2007 1. RAJDEO SHARMA, son of Bachcha Sharma, 2. HARENDRA SINGH, Son of Late Indrashan Singh, 3. SUBHASH SHARA, Son of Shivji Sharma, 4. BALIRAM SINGH, Son of Late Jaguna Singh, 5. AMARDEO SHARMA, Son of Late Kumar Sharma, 6. RAJENDRA SHARMA, Son of Bachcha Sharma, 7. SARASWATI DEVI @ LALSA DEVI, wife of Ranjit Sharma, 8. RANJIT SHARMA, Son of Bachcha Sharma, 9. SHIVJEE SHARMA, Son of Late Kumar Sharma, All residents of village Mangalpur Gudaria, P.S. – Nautan, District – West Champaran at Bettiah. ---------------- Petitioners. Versus 1. STATE OF BIHAR 2. AMRENDRA SINGH, son of Vyas Singh residents of village Mangalpur Gudaria, P.S. – Nautan, District – West Champaran at bettiah. ------------- Opposite Parties. ------- 3 07.04.2010 Heard learned counsel for the parties. This is an application preferred by the applicant under section 482 of the Code of Criminal Procedure seeking quashing of the First Information Report as well as entire Criminal proceedings of Nautan P.S. Case No. 13/2007 dated 31.01.2007 under Sections 149, 302 and 201 of the Indian Penal Code which was lodged on the basis of a Complaint Case No. 115C/2007 filed by opposite party no. 2. The case of the complainant opposite party no. 2 as appears from complaint petition enclosed with First Information Report at Annexure – 1, is that there was one Nautan P.S. Case no. 9/2003, during investigation of which it emerged that one Rajesh Sharma (deceased) was engaged in a dinner after performing ‘Astayam’ at Mangalpur Mathiya till 11 p.m. He was - 2 - seen at the door of one Baidnath Mahto from where he was called by the applicant subsequently killed and the dead body was partially burnt to destroy the evidence. On the next date there was a rumor of his death. Further case of the complainant is that since the deceased Rajesh Sharma who was being favoured by his father who had two wives and children also from both of them and after retirement from teaching job further the deceased getting his entire affairs managed through the deceased causing annoyance to another family members and even wife of the deceased had some soft relationship with his younger brother which was known to the deceased. All these grounds led to put on murder giving rise to institution of Nautan P.S. Case No. 9/2003, wherein during investigation and supervision in paragraphs 235, 240, 241, 243, 244, 245 and 247. The above aspects have come indicating implication of the applicants here but, nothing was done rather another innocent persons have been implicated. It is also mention that earlier a complaint petition was filed bearing no. 9-C/2007, but due to technical defect as in absence LTI of complainant who was in custody, it was dismissed. The complaint petition was sent under section 156(3) of the Criminal Procedure Code to the concerned police station giving rise to institution of Nautan P.S. Case No. 13/2007 and - 3 - the applicant sought quashing of the same and filing relevant application. During the course of argument, learned counsel for the applicant submitted that the complaint petition was dismissed, so no fresh complaint is tenable. The second contention of the learned counsel for the petitioner is that in Nautan P.S. Case No. 9/2003, police has already submitted charge sheet against opposite party no. 2 and his brother and majority of the applicants are charge sheeted witnesses to the said case so just by way of putting them under pressure present complaint was filed. It is also submitted that since deriving some imaginary support from the investigation of the earlier case, so also no independent case is tenable. Learned counsel for the opposite party fairly conceded that trial of Nautan P.S. Case No. 9/2003 has already commenced, but, he reiterated that complainant in his complaint petition has already mentioned that earlier complaint was dismissed on technical grounds but not on merit, so present complaint petition was well entertainable and there is no wrong if case has been instituted on basis thereof. Now, it is undisputed position that one Rajesh Sharma was done to death in the month of January, 2003 giving rise to Nautan P.S. Case No. 9/2003. After investigation police submitted charge sheet against the complainant opposite party no. 2 and another in the year 2006 itself. Thereafter earlier complaint was filed which was dismissed on technical ground - 4 - but, in no way it comes as a bar to a subsequent complaint, so, the first contention of learned counsel for the applicant is not sustainable. So far as second contention is concerned, it has some substance from the plain reading of the complaint petition which forms basis of the instant case i.e. Nautan P.S. Case No. 13/2007. It reveals that complainant has based the complaint on some alleged materials coming out during investigation of earlier case i.e. Nautan P.S. Case No. 9/2003. In certain paragraphs ranging from 235 to 247 as mentioned in the complaint petition. But, instead of making his submissions before the court taking cognizance in Nautan P.S. Case No. 9/2003, even subsequently before the Trial Judge where trial has already commenced against complainant and other persons against whom police has already submitted charge sheet. He has filed complaint giving rise to Nautan P.S. Case No. 13/2007. Prima facie, it is done to strengthen his defence and put pressure upon the witnesses named in the charge sheet against him. The outcome of the investigation of earlier case and materials collected in the paragraphs referred to above in the complaint petition may be utilized by the complainant during trial at the time of cross-examination of the witnesses and also at - 5 - defence stage if he so wishes and if the materials are so strong finds support from the evidence oral/documentary during trial even at the defence stage appropriate order such as summoning after required persons in accordance with law may be passed by the Trial Court, but, institution of an independent case under section 319 Cr.P.C. or investigation of the case etc. if situation so warrants. It is undisputed position that both cases i.e. Nautan P.S. Case No. 9/2003 and 13/2007 centres around with unnatural death of one Rajesh Sharma. In his earlier case opposite party no. 2 is facing trial whereas after submission of charge sheet etc. he has got a subsequent case instituted which is not sustainable. This case falls under more than one criteria for scrutiny prescribed by the Apex Court in case of P.S. Rajya v. State of Bihar reported in 1996 SCC(9) page 8 which is as follows: “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted - 6 - allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly 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. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” - 7 - Taking into consideration on all such aspects without prejudice to the right of defence of opposite party no. 2 in the trial arising out of Nautan P.S. Case no. 9/2003. The proceeding of Nautan P.S. Case No. 13/2007 is hereby quashed. Accordingly, this application stands allowed. Rajeev/ (Akhilesh Chandra, J.)