IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11882 of 2000 1. SMT. INDU KUMARI W/O SHRI SUNIL KUMAR, R/O VILLAGE- JOLAHPURA, P.S.- NOOR SARAI, DISTRICT- NALANDA. 2. RAM PRATAP MAHTO, S/O LATE BIHARI MAHTO 3. MAHENDRA PRASAD S/O RAM PRATAP MAHTO 4. SANJAY PRASAD S/O RAM PRATAP MAHTO 5. KEDAR MAHTO, S/O LATE BIHARI MAHTO ALL R/O VILLAGE-BADGOAN, P.S.- NALANDS, DISTRICT- NALANDA..........................PETITIONERS. Versus 1. STATE OF BIHAR ......................................OPP. PARTY 2. SUNIL KUMAR @ TIPU SULTAN, S/O LATE BACHCHU MAHTO, R/O VILLAGE-JOLAHPURA, P.S.-NOOR SARAI, DISTRICT- NALANDA..........................COMPLAINANT-OPP. PARTY. For the petitioner...................................Mr. Anil Kumar No.1 (Advocate) For the State..........................................Mr. A.M.P. Mehta (A.P.P.) For the opp.party No. 2.........................Mr. Sanjay Kumar (Advocate) 6 20-07-2010 1. Four 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 27-03-2000 passed in complaint case No. 54 of 2000. By the said order learned Judicial Magistrate 1st class Nalanda has taken cognizance of offence under Section 494/114 of the Indian Penal Code. 2. The short fact of the case is that opposite party No. 2, who was husband of petitioner No. 1 filed a complaint vide complaint case No. 54 C of 2000 in the Court of Chief Judicial Magistrate, Nalanda, alleging therein that while he had gone to earn livelihood and he was at Surat, the petitioner No. 1, his wife developed illicit relation with one Nagina Pandit and thereafter several attempts were made by the opposite party No. 2 to dissuade the petitioner No. 1 from committing such offence. Even complaint given to the father of petitioner No. 1 2 and two brothers and uncle who are petitioner nos. 2 to 5 respectively for persuading the petitioner No. 1 not to indulge in such offence went in vein. 3. It was argued that even thereafter the petitioner No. 1 with the aid and assistance of petitioner No. 2 to 5 solemnized her marriage with Nagina Pandit, who was alleged to be neighbour of the complainant- opposite party No. 2. In this case, Nagina Pandit who was alleged to be second husband of petitioner No. 1 was not arrayed as accused in the complaint case No. 54 C of 2000. 4. After filing of the complaint petition, the learned Magistrate conducted inquiry and thereafter by his order dated 27-03-2000, has passed the impugned order of cognizance. 5. Aggrieved with the order of cognizance, the petitioners approached this Court by filing the present petition and on 9-2-2001 while issuing notice to the opposite party No. 2, this court directed that till further order is passed in the admission matter further proceedings in complaint case No. 54 C of 2000 pending in the Court of Shri Alok Kumar Sinha, Judicial Magistrate 1st class, Nalanda shall remain stayed. Thereafter, on 19-4-2001 the case was admitted for hearing and this Court directed that till further order is passed, interim order dated 9-2- 2009 will continue, and same is continuing. 6. Shri Anil Kumar, learned counsel appearing on behalf of the petitioners at the very outset submits that the complaint petition in the present case was filed by the opposite party No. 2 with mala fide intention and maliciously. It was submitted that prior to filing of the 3 present complaint a case was instituted at the instance of petitioner No. 1 against the opposite party No.2 and his other family member. It was submitted that on allegation of commission of offence under Sections 498(A), 323 and 379 of the Indian Penal Code the petitioner No. 1 had filed a complaint case vide complaint case No. 697-C of 1999 in the Court the Chief Judicial magistrate, Nalanda which was referred to police for its registration and investigation under Section 156(3) of the Code of Criminal procedure and thereafter an F.I.R. vide Noor Sarai P.S. case No. 178 of 1999 was registered (copy of same has been annexed as Annexure- 2 to the present petition). After registering the F.I.R. on 23-12-1999 and conducting investigation charge sheet was submitted against opposite party no. 2 and other family members of opposite party No. 2 in the case for Offence under Sections 498(A), 323 and 379 of the Indian Penal Code on 23-12-1999 the learned Magistrate had taken cognizance of the offences, the opposite party No.2 was arrested and subsequently released on bail and thereafter maliciously the present complain was filed on 21.1.2000. 7. Learned counsel for the petitioners has further referred to Annexure-3 to the petition at pages 34 to 36 Annexure 3 and 3-A which is the petition of compromise in between the parties. It was submitted that on false assurance given by the opposite party no. 2, the petitioner No. 1 agreed to enter into a compromise with opposite party No. 2. Learned counsel for the petitioner submits that on the strength of said compromise petition opposite party No. 2 was subsequently granted bail by order dated 17-12-1999, which has been brought on record as 4 Annexure-5 to the supplementary affidavit. It was submitted that immediately after being released on bail in the case which was instituted as per the instance of the petitioner No.1, the opposite party No. 2 with an oblique motive and maliciously filed the present complaint petition. Accordingly, it has been submitted that the entire proceeding is liable to be set aside on the ground that the proceeding is malicious and mala fide. 8. Shri Sanjay Kumar, learned counsel appearing on behalf of opposite party no. 2 has vehemently opposed the prayer of the petitioner. It was submitted that from the complaint petition itself, which was the basis for registering F.I.R. as Noor Sarai P.S. Case No. 178 of 1999, it is clear that the petitioner No. 1 was having illicit relation with the neighbour of the opposite Party No. 2 namely Nagina Pandit and dispute in relation to such relation was continuing in between the complainant of the present case and petitioner No. 1 and since subsequently, the petitioner No. 1 got married with Nagina Pandit with the aid and assistance of other remaining accused persons, the complainant was constrained to file the present complaint petition. 9. In view of the facts and circumstances as indicated in the complaint petition as well as the F.I.R. of Noor Sarai P.S. Case No. 178 of 1999, as submitted by Shri Sanjay Kumar, it cannot be said that the complaint was filed maliciously or with oblique motive. It was further submitted that after filing of the complaint petition inquiry witnesses had also supported the case and thereafter order of cognizance was passed. It was argued that at the stage of cognizance this Court may 5 refrain from interfering that too while exercising power under Section 482 Cr.P.C., which according to Sri. Sanjay Kumar, is to be exercised in exceptional cases. It is submitted that on perusal of the complaint petition itself it is established that offence of adultery has been made out. Shri Sanjay Kumar, learned counsel appearing on behalf of the opposite Party No. 2 has accordingly, prayed that this petition may be rejected. 10. Mr. A.M.P. Mehta, learned Additional Public Prosecutor appears on behalf of the State. He supports the stand taken by Shri Sanjay Kumar. 11. Besides hearing learned counsel for the parties I have also perused the materials available on record. Prima-facie, the Court is satisfied that the present complaint petition was not filed fairly or honestly. The present complaint petition was filed by opposite Party No. 2, only when he got bail order in his favour after persuading petitioner No.1, who was informant in Noor Sarai P.S. Case No. 178 of 1999 to sign a compromise petition. Though in the complaint petition it has been alleged that marriage of opposite party No. 2 was solemnized with petitioner no. 1 in the year 1996 and thereafter he went to Surat for earning his livelihood and noticed illicit relation of petitioner No. 1 with Nagina Pandit, he has taken no steps for instituting any such case of adultery against Nagina Pandit. Whatever action was taken by the opposite party No. 2 was taken only after he was made accused in Noor Sarai P.S. Case no. 178 of 1999 and released on bail that too on the strength of compromise petition. 6 12. In view of the facts and circumstances of the present case particularly, the institution of F.I.R., charge sheet, cognizance, compromise petition and thereafter release of opposite party No. 2 on bail on the strength of compromise petition in Noor Sarai P.S. Case No. 178 of 1999 the Court is satisfied that the present complaint was filed with an oblique motive and maliciously. If the court is satisfied that the proceeding was initiated maliciously, it would be necessary to quash such proceeding while exercising power under section 482 Cr.P.C. 13. In view of the facts and circumstances of the present case the court is satisfied that this is a fit case for exercising its inherent jurisdiction under section 482 Cr.P.C. in favour of petitioners and accordingly, the order taking cognizance dated 27-03-2000 passed by Shri Alok Kumar, Judicial Magistrate in complaint case No. 54C of 2000 is hereby set aside and petition stands allowed. S.P. (Rakesh Kumar, J.)