IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43044 of 2007 1. SUBHASH CHANDRA SHARMA, Son of Late Ram Nandan Singh 2. John @ Jitendra Kumar, Son of Sri Subhash Chandra Sharma 3. Dhiraj Kumar, Son of Late Rajendra Prasad Sharma All resident of Mohalla-North Jai Prakash Nagar, Road No.5, P.S. Rajeev Nagar, District-Patna ------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Ram Sekhar Chaudhary, Son of Late Harihar Chaudhary, resident of Village- Uttari Jai Prakash Nagar, Road No.4, Nala Road, P.S. Shastri Nagar, District-Patna --- Opp.Parties. -------------- For the petitioners: S/Sri Subodh Kr. Jha, Anjani Kumar, and Pranav Kumar, Advocates For the Opp.Party no.2:- Sri Sideshwar Pd.Singh, Advocate For the State: Sri A.M.P.Mehta, A.P.P. ----------- 08 03-11-2010 Three 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 11.7.2007 passed by the learned Judicial Magistrate, 1st Class, Patna in Complaint Case No.62 (C) of 2007. By the said order, the learned Magistrate has taken cognizance of offences under Sections 323, 341 and 379 of the Indian Penal Code. Short fact of the case is that Opp.Party no.2 filed a complaint in the court of learned Chief Judicial Magistrate, Patna, which was numbered as Complaint Case No.62 (C) of 2007 against the petitioners on an allegation of commission of offences under Sections 392, 379,323, 341 and 504 of the Indian Penal Code and 25 of the Arms Act. It was alleged in the complaint petition that on the date of occurrence, i.e. on 2 7.1.2007 while after completing shopping, the complainant was returning back to his house and he reached on the road at New Friends Colony, Ashiana Nagar, Patna three petitioners surrounded him .Thereafter, petitioner no.1 put pistol on the chest of the complainant and petitioner no.2 was armed with dagger. It was alleged that all the three accused persons looted the articles of the complainant. In the said occurrence, besides looting new purchased clothes, Rs.1500/- and wrist watch as well as golden ring of the complainant was also snatched by the accused persons. On the aforesaid allegation, the complainant filed the complaint petition. The learned Magistrate after conducting enquiry has taken cognizance of offences under Sections 323,341 and 379 of the Indian Penal Code. Learned Magistrate has not taken cognizance in respect of offences under Sections 392, 504 of the Indian Penal Code and 25 of the Arms Act. Aggrieved with the order of cognizance, the petitioners approached this Court by filing the present petition. Sri Subodh Kumar Jha, learned counsel appearing on behalf of the petitioners , at the very out set while challenging the order of cognizance and prosecution of the petitioners , has submitted that the present proceeding was initiated maliciously by the complainant. It was submitted by Sri Jha, learned counsel for the petitioners , that petitioner no.1 at the relevant time was posted as Assistant Engineer in the Minor Irrigation Department and closely related to the complainant, was made accused along 3 with his son ( petitioner no.2) , who is now studying in the Engineering College at Madras. So far as petitioner no.3 is concerned, it was submitted that he is son of sister of petitioner no.1. It was submitted that it is not expected that the petitioner no.1 who is relative of the complainant along with his son and petitioner no.3 will commit such crime at a public place. Learned counsel for the petitioners , while substantiating his arguments regarding malicious prosecution, has referred to Annexure-5 to the supplementary affidavit, i.e. a photo copy of certified copy of Complaint Case No.1295C of 2007, which was filed by the present complainant against father-in-law of petitioner no.1. It was submitted that in the said complaint, i.e. Complaint Case No.1295C of 2007, the complainant of the present case has cited four persons as witness to the occurrence. Sri Jha, learned counsel for the petitioners has specifically pointed out that the same witnesses, who were cited as witness in Complaint Case No.1295C of 2007, have been cited as witness in the present case. It was submitted that it is surprising that the same witnesses, who were cited as witness in earlier complaint petition, have been shown as ocular witnesses in the present case, which has taken place at a public place. It was submitted that it is not expected that all the four witnesses, who were cited in the earlier complaint petition will become witnesses to the present case. It has further been submitted that earlier the son of the complainant was married with the sister-in- law of petitioner no.1. At subsequent stage, the son of the 4 complainant died and thereafter the complainant of the present case had filed a complaint vide Complaint Case No.1295C of 2007 on an allegation that the father-in-law of petitioner no.1, who was father-in-law of son of the complainant had thrown the son of the complainant from the running train and thereafter he died. It has been submitted that the said complaint, which was filed against the father-in-law of petitioner no.1 was subsequently rejected under Section 203 of the Code of Criminal Procedure and even revision preferred against the order of rejection of the complaint petition was rejected on 25.6.2008 by the learned Sessions Judge, Patna in Cr.Revision No.93 of 2008. Learned counsel for the petitioners has specifically referred to Annexure-6 i.e. order dated 2.2.2008 rejecting the complaint Case No.1295 C of 2007 as well as Annexure-7 i.e. order dated 25.6.2008 passed in Cr.Revision no.93 of 2008.Learned counsel for the petitioners has further submitted that on earlier occasion, the daughter-in-law of the complainant, who is sister-in-law of petitioner no.1 had got a complaint filed before the Bihar State Mahila Ayog,Patna against the complainant of the present case. It was submitted that due to the aforesaid facts in a grudge, the complainant of the present case has filed the present false complaint petition. Accordingly, it has been prayed to set aside the order of cognizance and entire prosecution against the petitioners. Sri Sidheshwar Pd. Singh, learned counsel appearing on behalf of Opp.Party no.2 (complainant), while opposing the 5 prayer of the petitioners, has submitted that the order of cognizance was passed in the year 2007 and now the case has come to the stage of charge and at the stage of charge, it would not be appropriate to interfere with the order of cognizance. Learned counsel for Opp.Party no.2, however, has not disputed the relationship of petitioner no.1 with the complainant. He has further submitted that even in paragraph no.4 of the counter affidavit, he has accepted that the daughter-in-law of the complainant was sister-in-law of petitioner no.1. However, he has submitted that this Court may not interfere at the initial stage of the case. Accordingly, he has prayed for rejection of the present petition. I have also heard Sri A.M.P.Mehta, learned Addl.Public Prosecutor. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Of course, while hearing a petition under Section 482 of the Code of Criminal Procedure, it is not desirable to examine that document, enclosed with the petition unless the same is brought through process of law, but in the peculiar facts and circumstances of the case, I have examined the same with a view to come to a just decision in the present case. After going through the materials on record, the Court is of the opinion that it is not expected that the relative of the complainant, who is holding a responsible post, i.e. the Engineer in the Irrigation Department, along with his son, who had got bright career, would commit such crime on a 6 public place. It is also difficult to conceive that the petitioners, who were relative of the complainant, would commit such crime. In view of the facts and circumstances, which have been brought on record, the Court is of the opinion that the present complaint petition was filed maliciously. Accordingly, the Court is convinced that allowing the prosecution of the petitioners on such complaint will amount to allowing abuse of the process of the court and with a view to prevent abuse of the process of the Court as well as for the ends of justice, it is desirable to interfere with the impugned order of cognizance dated 11.7.2007 passed by the learned Judicial Magistrate, 1st Class, Patna in Complaint Case No.62 (C) of 2007. Accordingly, the order of cognizance dated 11.7.2007 passed by the learned Judicial Magistrate, 1st Class, Patna in Complaint Case No.62 (C) of 2007 is hereby set aside and the petition stands allowed. NKS/- (Rakesh Kumar, J.)