Criminal Miscellaneous No.11798 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- CHANDRA KISHORE MISHRA @ BASAHI LAL SON OF RADHA KISHUN MISHRA VILLAGE/MOHALLA HAILA BAZAR, P.S. TOWN HAZIPUR, DIST. VAISHALI. ... ... PETITIOINER. Versus 1. THE STATE OF BIHAR 2. LAKHAN RAJ SON OF LATE DERI RAI VILL. HARBANSHPUR, P.S. HAZIPUR, DIST. VAISHALI. ... ... OPPOSITE PARTIES. ---- For the Petitioner : Mr. R.K. Shukla, Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Learned counsel for the petitioner files supplementary affidavit. Keep it on record. 2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of order dated 22.3.1999 passed by Shri Abhay Kant Jha, Judicial Magistrate, Ist Class, Vaishali, Hajipur in Complaint Case No.C.I.351 of 1998/1209 of 1999. By the said order, the learned Magistrate has taken cognizance of the offence under Section 406 of the Indian Penal Code. 3. Short fact of the case is that the - 2 - opposite party no.2 filed a complaint case vide Complaint Case No.C.I.351 of 1998/1209 of 1999 alleging therein that the sole petitioner had persuaded the complainant for purchasing 1 & 1/2 Bigha of land appertaining to Khata No.135, Khesra No.78 of village Harbanshpur. Subsequently, the complainant made an advance payment of Rs.75,000/- to the petitioner and the petitioner assured for executing sale deed. In the meanwhile, the complainant was also allowed possession over the land in question. It was alleged in the complaint petition that even after vigorous persuasion, the petitioner never executed the sale deed and thereafter, the complainant believed that he has cheated by the petitioner. It was alleged in the complaint petition that payment of Rs.75,000/- was made to the petitioner in presence of some witnesses. After filing complaint petition, the complainant was examined on S.A. and in support of his complaint, three witnesses were examined, who supported the complaint case. Thereafter, the learned Magistrate, by the impugned order dated 22.3.1999, took cognizance for the offence under Section 406 of the Indian Penal Code and directed for issuance of summon for securing attendance of - 3 - the petitioner. 4. Aggrieved with the order of cognizance, the petitioner approached this Court by way of filing the present petition. On 17.8.1999, while issuing notice to opposite party no.2, this Court had directed that in the meanwhile, further proceeding of Complaint Case No. C.I.351 of 1998, Trial No.1209 of 1999 pending in the court of Sri Abhay Kant Jha, Judicial Magistrate, Ist Class, Vaishali, Hajipur shall remain stayed. Subsequently, on 21.12.1999, this petition was admitted for hearing and it was further directed that pending disposal of this application, further proceedings in Complaint Case No. C.I.351 of 1998/1209 of 1999 pending in the court of Shri A.K. Jha, Judicial Magistrate, Ist Class, Vaishali shall remain stayed and thereafter, interim order of stay is continuing till date. In this case, notice was issued to the opposite party no.2 and pursuant to notice, he appeared through his advocate. However, while the case was firstly taken up for hearing on 23.4.2010, none appeared on behalf of opposite party no.2. Again today, when the case was taken up for hearing, none has come forward to defend - 4 - the case of opposite party no.2. 5. Shri R.K. Shukla, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance and subsequent proceeding in Complaint Case No. C.I.351 of 1998/1209 of 1999, has argued that the present complaint petition was maliciously filed. He submits that prior to filing of the present complaint by opposite party no.2, a criminal case was initiated against opposite party no.2 and his four sons vide Complaint Case No.157 of 1992. It was submitted that the complaint case i.e. Complaint Case No.157 of 1992 was filed by the manager of the petitioner, namely, Shri Bajrang Roy. It was alleged in Complaint Case No.157 of 1992 that accused persons i.e. opposite party no.2 and his four sons had forcibly entered into the field of the present petitioner and thereafter, they looted standing crops from the land of the petitioner. Learned counsel for the petitioner has filed supplementary affidavit. He has brought on record a certified copy of complaint petition i.e. Complaint Case No.157 of 1992 and also certified copy of some of the recent order sheet in Complaint Case No.157 of 1992. Learned counsel for - 5 - the petitioner submits that in the complaint case, which was filed by the manager of the petitioner against opposite party no.2 and his sons, non bailable warrant of arrest was issued long back. However, they have not appeared before the court below. Learned counsel for the petitioner has also brought on record a Death Certificate in respect of death of opposite party no.2. Learned counsel for the petitioner, while submitting that the order of cognizance and entire prosecution in the present case is liable to be set aside on the ground of malicious prosecution, has relied upon a recent judgment of Supreme Court reported in 2008(8) SCC 232 (Priya Barat Singh & others Vs. Shyamji Sahay). It has been argued that the present case is squarely covered in the 7th category specified in a case reported in AIR 1992 Supreme Court 604 (State of Haryana Vs. Bhajanlal). He has submitted that in paragraph-108 of the said judgment, the Hon’ble Supreme Court has categorized seven circumstances, in which this Court, even while exercising power under Section 482 of the Code of Criminal Procedure besides exercising power under Article 226 of the Constitution of India, can set aside the - 6 - prosecution. He submits that in view of the fact that earlier complaint petition was filed against opposite party no.2 and his sons through the manager of this petitioner, the present complaint petition was maliciously filed by the opposite party. Besides malicious prosecution, the learned counsel for the petitioner has argued that the story, which has been described in the present complaint petition, is also not believable. He submits that it is not believable that the opposite party would give Rs.75,000/- to the petitioner as advance without any chit of paper. He further submits that since the relation in between the petitioner and opposite party no.2 was strained, it cannot be believed that the opposite party no.2 can hand over a huge amount of Rs.75,000/- to the petitioner that too without any chit of paper and also in a strained relation. Accordingly, he has submitted that the order of cognizance as well as subsequent proceeding in the present case is liable to be set aside on the ground of malicious prosecution. 6. Smt. Indu Bala Pandey, learned A.P.P. has appeared on behalf of the State and she has opposed the prayer of the petitioner. - 7 - 7. Besides hearing, learned counsel for the parties, I have also examined the materials available on record particularly the present complaint petition, impugned order dated 22.3.1999 as well as certified copy of the complaint petition, which was got filed by the petitioner against opposite party no.2 and his four sons through his manager and also certified copy of recent order sheet in Complaint Case No.157 of 1992. On perusal of the materials available on record, I am of the view that certainly the present complaint petition was not filed honestly and fairly, but the complaint was maliciously filed. Moreover, in view of the facts and circumstances particularly in view of the fact that earlier a criminal case was instituted against the opposite party no.2, it is difficult to comprehend the story as alleged by the complainant in the present case regarding payment of Rs.75,000/- as advance for the purpose of purchasing land of the petitioner whereas the opposite party no.2 and his four sons were already made accused in a complaint case, which was filed against them by the manager of the petitioner. 8. In view of the facts and - 8 - circumstances, I am of the view that the present case can be categorized as malicious prosecution and, accordingly, with a view to prevent abuse of the process of the court, it is necessary to quash the order of cognizance and all subsequent proceeding in Complaint Case No. C.I. 351 of 1998, Trial No.1209 of 1999. 9. Accordingly, the petition stands allowed and order of cognizance dated 22.3.1999 is hereby set aside. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 10.5.2010 N.A.F.R./N.H.