IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42814 of 2007 ASHUTOSH SINGH @ ASHUTOSH KUMAR, Son of Late Balgovind Singh, resident of West Ramsagar Talab, Mangla Gouri Road, P.S.-Civil Lines, District-Gaya. ……..Petitioner. Versus 1. The State of Bihar. 2. Rajeshwar Lal, Son of Late Ramchandra Prasad. Resident of Eastern Railway Gumti, P.S.-Ara Nawada, District-Bhojpur. ………….Opp. Parties. For the Petitioner: Mr. Ashutosh Kumar, Adv. Mr. Mrigendra Kumar, Adv. For the State: Mr. B.P. Singh, APP. ------------ 4/ 22.12.2009 Heard. Petitioner has prayed for quashing the order taking cognizance date 03.09.2003 under Sections 447, 448, 323, 379, 504/34 of the Indian Penal Code and Section 3 (X) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989, passed in Case No. 967 (C) of 2002 / Tr. No. 639 of 2005 by the Chief Judicial Magistrate, Ara, Bhojpur. The complainant / opposite party no.2 Rajeshwar Lal, alleged that the petitioner, who is Circle Officer of Ara Circle Office along with police party came to his door and abused him by calling names as to why he had opened a Gumti nearby. The complainant further alleged that the petitioner and other police party entered into his shop and removed Khaini, Chuna and other items and carried them away on a Jeep. On hulla witnesses came and saw the occurrence. The complainant went to police station to lodge a case, as such he filed the instant complaint case being case no. 967 (C) of 2002. 2 The petitioner states that in the facts and circumstances of the case, no offence under Section 3(x) of SC/ST Act and provisions of Indian Penal Code would be made out. He submits that the complainant has put Gumti on the road and Special drive launched pursuant to order of this Court in Arun Kumar Mukharjee and Ors Vs. The State of Bihar being C.W.J.C. No. 2290 of 1990, the encroachment was removed. The petitioner states that prosecution is malicious and has been launched to wreak vengeance. Even P.W.1 examined in course of enquiry under Section 202 Cr.P.C. admitted that circle officer has taken action, as the petitioner had opened his Gumti shop on the public road. Learned counsel submits that his case is fully covered by a decision of this Court in the case of Anirudh Rai Vs. State of Bihar reported in 2007 (3) PLJR 267. In the aforesaid case also the petitioner monitored encroachment drive against encroacher. One of the encroachers filed a complaint under Sections 323, 504, 448 and 325 of the IPC and Section 3(x) of the SC/ST (Prevention of Atrocities) Act. This Court quashed the complaint, holding the same to be a malicious prosecution. No one appears on behalf of opposite party no.2. No one had appeared on the previous day also on behalf of opposite party no.2. From perusal of the instant case, no offence under 3 Section 3(x) of the SC/ST (Prevention of Atrocities) Act and other provisions of the IPC is made out, as the petitioner was removing the encroachment as per the direction of this Court, in case of Arun Kumar Mukharjee and others Vs. The State of Bihar. I also find that the instant case is fully covered by a decision of this Court reported in Anirudh Rai Vs. State of Bihar reported in 2007 (3) PLJR 267. In this view of the matter, I hold that instant prosecution is malicious and has been filed in order to wreak vengeance for removing the encroachment made by the complainant. In the result, the impugned order taking cognizance is set aside. The petition stands allowed. Sanjeet/ (S. P. Singh, J.)