Criminal Miscellaneous No.10988 of 2009 For quashing the order dated 29.09.2008 passed by the learned Additional Chief Judicial Magistrate, Jhanjahrpur in Madhepur P.S. Case No. 141 of 2005 corresponding to G.R. No.634 of 2005. --------------- 1. Kanti Jha @ Kanti Devi wife of Bhagwan Lal Jha 2. Bhagwan Lal Jha son of late Balmukund Jha 3. Pratima, D/O Bhagwan Lal Jha, All residents of village-Sangi, P.S.Phulparas, Distt-Madhubani, at presently residing at Mohalla- Jagat Narayan Road, Near Patliputra School, P.S. Kadam Kuan, Distt- Patna. 4. Poonam Devi @ Poonam Jha D/O Bhajan Lal Jha W/O Raghvendra Narayan Jha, AEM, Buxar, Bunglow No.21, South Railway Colony, Gajadhaganj, Buxar. .... .... Petitioner/s Versus 1. State Of Bihar 2. Rachna Jha, D/O Bihari Jha, W/O Santosh Jha R/O village- Kaithiniya, P.S. R.S. Shivir, Jhanjharpur, Distt-Madhubani .... .... Opposite Party/s ========================================================== For the Petitioner/s : Mr. Rajendra Kumar Jha, Advocate Mr. Tanuja Mishra, Advocate For the Opposite Party/s : Mr. Manoj Kumar Jha-1 ========================================================== P R E S E N T HON’BLE MR. JUSTICE ADITYA KUMAR TRIVEDI Aditya Kumar Trivedi, J. Petitioners, Kanti Jha @ Kanti Devi, Bhagwan Lah Jha, Pratima and Poonam Devi @ Poonam Jha filed the instant petition for quashing of an order dated 29.09.2008 passed by learned Additional Chief Judicial Magistrate, Jhanjharpur in connection with Madhepur P.S. Case No. 2 141/2005, G.R. No. 634/2005 whereby and whereunder summoned the petitioners named above to face trial under Section 365,368, 120B of the IPC. 2. Respondent no.2 filed a Compliant Case No.529/2005 against the accused-petitioners named above disclosing therein that her husband, Santosh Kumar Jha had contested last Bihar Assembly Elecction from Madhepur Assembly Seat as a party candidate of Lok Janshakti. Her husband sent her along with her daughter, Karnika aged about 5-6 years and a son aged about 4 years on 4th January 2005 to her Maika for arranging Rs.50,000/-. After completion of election, on 17th February 2005 petitioners-accused Kanti Jha @ Kanti Devi and Bhagwan Lal Jha came and took away her both children to Patna on the pretext of providing education and since thereafter they both are missing. Then it has been submitted that she had telephonic conversation with her children for 2-3 days but since thereafter they both are missing. She had served an advocate notice, however, without any response. Further had disclosed that her husband is in custody in connection with Vigilance Case No.8/2005. Then, she had disclosed that whenever she insisted for return of her children, petitioner- accused, Kanti Jha, Bhagwan Lal Jha and Pratima asked for putting her signature over divorce 3 paper as well as also demanded ransom of Rs.5 to 25 lacs. 3. The aforesaid complaint was sent to the local police on account of which Madhepur P.S.Case No.141/2005 under Section 364A, 368, 120B of the IPC was registered and investigation commenced and after completing the same, final form was submitted disclosing therein that it happens to be civil dispute. While the aforesaid matter was pending for consideration, police took recourse of Section 173(8) of the Cr.P.C. and proceeded with further investigation whereupon charge-sheet has been submitted under Sections 365, 368, 120B of the IPC whereunder vide order dated 20.09.2008 cognizance has been taken and the same happens to be the subject matter of the instant petition. 4. While assailing the order impugned, it has been submitted on behalf of the petitioners that petitioner no.1 and 2 happen to be mother-in-law and father-in-law of complainant/O.P. No.2 while remaining two are sisters-in-law of complainant/O.P. No.2. Further submitted that there has been marital discord amongst the O.P. No.2 with her husband, namely, Santosh Kumar Jha on account of which her husband had filed Divorce Case No. 341/2003. Also submitted that for getting himself to be guardian of both minor children, Santosh Kumar Jha, husband of O.P. 4 No.2/complainant had already filed Guardianship Case No.15/2005 in the court of Principal Judge, Family Court, Patna. Side by side O.P. No.2/complainant had also filed Guardianship Case No.44/2005 at Madhubani which was returned back vide order dated 24.07.2006 for getting it presented before the Family Court, Patna, (Annexure-6). Further, it has been submitted that O.P. No.2 had filed Cr.W.J.C. No. 706/2005 under the colour of habeas corpus petition which was also disposed of vide order dated 15.02.2006 (Annexure-5) on account of pendency of Guardianship Case. Then submitted that O.P. No.2 had also filed criminal case bearing Lakhnour P.S. Case No.12/2005, G.R.No.71/2005 wherein she had filed a petition on 20.04.2005 (Annexure-4). From paragraph-4 of the aforesaid petition it is evident that she had herself disclosed that on 17.02.2005 her husband, Santosh Kumar Jha had taken away her minor son and daughter from her custody. So submitted that in the background of aforesaid factual aspect, the prosecution of petitioners will be nothing but an abuse of process of the court. 5. Then coming to legal aspect, it has been submitted that while the petitioners along with Santosh Kumar Jha had approached before this Court under Cr.Misc. No.34012/2009, Cr.Misc. No.7920/2010 for grant of anticipatory bail in 5 connection with case filed by O.P. No.2, both the parties have made their physical presence along with both the children as is evident from the order dated 19.05.2010. The girl is studying in Modi School at Laxmangarh while the boy is admitted at St.Domino Public School, Patna and none of them have claimed any grievance against their father as well as petitioners. Both the children, at their own, did not choose to accompany O.P. No.2 rather they both joined Santosh Kumar Jha, the father. Then submitted that Santosh Kumar Jha happens to be lawful guardian under whose custody the children are and only to malign the prestige of the family, old ailing persons, petitioners no.1 and 2 and married as well as unmarried sisters-in-law, have been roped in under revengeful manner. As such submitted that the order impugned is fit to be quashed. 6. On the other hand, learned counsel for O.P. No.2 submitted that the order is quite justified and did not attract any sort of intervention. Also submitted at the time of taking of cognizance the Magistrate is only required to see a prima facie case as happens to be settled principle of law on this score, without forming a view that the allegations whatever been alleged happen to be sufficient to culminate in conviction of the accused. Therefore, submitted that at prima facie material having available 6 on the record by way of case diary wherefrom an opinion has been formed by learned lower court with regard to presence of prima facie case, was sufficient and justify the action of the learned lower court. Then, submitted that true it is that parties are inter- related that does not permit the petitioners to snatch and took away minor children of O.P. No.2 from her legal custody and so submitted that petition is fit to be dismissed. 7. Learned APP followed and adopted the argument advanced on behalf of O.P. No.2 and submitted that petition is fit to be dismissed. 8. The scope of 482 Cr.P.C. has been identified in leading decision reported in AIR 1960 SC 866 which has further been magnified in a decision reported in AIR 1992 SC 604 in case of State of Haryana Vs. Bhajan Lal & Ors whereunder seven criterias have been identified for invoking jurisdiction under Section 482 of the Cr.P.C. 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 of 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 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 7 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, on 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 grounds for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, 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.” 9. The aforesaid judgment has been tested times without number and the recent decision happens to be reported in AIR 2011 SC 1238. 10. So far as facts of the present case is concerned, it is evident from the order dated 19.05.2010 passed in connection with Cr.Misc. No. 34012/2002 with Cr.Misc. No.7920/2010 whereunder both the so alleged victim have put their presence. From the aforesaid order it is also evident that both the children are getting good academic education in renowned schools. It is also evident that for the custody of children, the matter is subjudiced before the Family Court, Patna under Guardianship 8 Case No.15/2005. Further, from Annexure-4 which the O.P. No.2 had herself filed in connection with Lakhnour P.S. Case No.12 of 2005 putting an averment under paragraph-4 of the petition that her husband had taken away both the children from her custody contrary to the allegation so put forward under Madhepur P.S. Case No.141/05. 11. At this juncture, one should not lost sight of Section 361 of the IPC which reads as follows:- “Kidnapping from lawful guardianship.- Whoever takes or entices any minor under[sixteen] years of age if a male, or under [eighteen]years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.- The words ‘lawful guardian’ in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose”. 12. This exception gimps the act so alleged committed by the accused out of creel, when the said act does not disclose to have been committed for an immoral or unlawful purpose while removing the victim even under illusion of being entitled to have lawful custody over victim. The child is getting good educational facility at renowned school provided by their father and further 9 making no complaint of any sort during the course of their physical presence before the Hon’ble Court, makes the allegation on its face sketchy as well as its origination under malicious prosecution apart from further supported with pendency of guardianship case. 13. In the aforesaid factual aspect subsisting on record, there happens to be full application of principle enunciated by the Hon’ble Supreme Court in Bhajan Lal (supra) case as a result of which, the order impugned is quashed. Consequent thereupon, the petition is allowed. Patna High Court Dated the 16th day of September 2011 Md. Perwez Alam/AFR (Aditya Kumar Trivedi,J.)