Criminal Miscellaneous No.3683 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------ Laxmi Prasad Chaurasia @ Laxmi Prasad,S/O Shri Roop Lal Prasad, Supply Inspector , Alauliganj, resident of Alauli, District-Khagaria -------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Vipin Kumar, S/O Shri Rajniti Prasad Jaiswal, resident of Vill- Sumbhagazi Ghat, P.S. Alauli, District-Khagaria --------------- Opp.Parties. ---------- For the petitioner: Mr. S.D. Sanjay, Advocate For Opp.Party No.2 : S/Sri Vivekanand Singh, Ritesh Kr.Singh, Advocates For the State : Smt. Indu Bala Pandey, A.P.P. -------------- P R E S E N T THE HON'BLE SHRI JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, who was at the relevant time Supply Inspector , Alauli Block in the district of Khagaria , has invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 25.1.1999 passed by Shri A.B.R. Verma, Judicial Magistrate, 1st Class, Khagaria in Complaint Case No.390 C of 1998. By the said order, the learned Magistrate has taken cognizance of offences under Sections 323,341,392 of the Indian Penal Code. 2. The short facts of the case is that the Opp.Party no.2 ,who was running a shop under the scheme of Public Distribution System(hereinafter referred to as“ P.D.S.”) filed the 2 present complaint with an allegation that while he was moving near the Bus Stand along with three witnesses. He was intercepted by the present petitioner and two others and took out a three-nut-three pistol and by putting him in fear the accused persons assaulted the complainant and, thereafter, the petitioner took a golden chain from the neck of the complainant, which was for an amount of Rs.5, 500/- and also took out of Rs.2000/- from the upper pocket of the complainant. It has also been alleged by the complainant in the complaint petition that in the said occurrence as per the direction of this petitioner, other accused persons forcibly took his Allwyn wrist watch costing Rs.850/- and a golden ring costing Rs.1800/-. According to the complainant in the said occurrence, he suffered a loss of Rs.10150/- and in the occurrence, he was also assaulted with the butt of the pistol. In support of his complaint, the complainant got three witnesses examined, who supported the complainant’s case and thereafter the learned Magistrate by its order dated 25.1.1999 took cognizance of the offences as mentioned above. 3. Sri S.D.Sanjay, learned counsel for the petitioner, while challenging the order of cognizance as well as initiation of criminal proceeding on the basis of complaint petition lodged by Opp.Party no.2, submits that the complaint petition was filed maliciously and with a view to create a defence in a criminal case, which was instituted on the basis of written complaint of this petitioner. He submits that the complainant, 3 who was a dealer under the P.D.S., was indulged in black marketing and other offences and after receiving such complaint/ information on 24.1.1998 in his official capacity the petitioner made an inspection in the shop of the complainant. He found several irregularities and thereafter he gave a report to the Sub Divisional Officer, Khagaria and, thereafter vide office order, contained in Memo No.142 dated 27.1.1998 (Annexure-1), the Sub Divisional Officer, Khagaria, while suspending the licence of the complainant, directed him to file show cause. By subsequent letter contained in Memo No.201 dated 8.2.1998 (Annexure-2), the Sub Divisional Officer, Khagaria directed the petitioner to conduct a detailed enquiry and thereafter the petitioner in his official capacity conducted the enquiry and submitted a detailed report. After submission of the report and examining the entire materials available on the record, the Sub Divisional Officer , Khagaria vide its order contained in Memo No.683 dated 20th Mary,1998 ( Annexure-3) finally cancelled the licence of the complainant-Opp.Party no.2. Sri Sanjay has further referred to Annexure-4 to the petition contained in Memo No.856 dated 27th June, 1998 issued under the order of the Sub Divisional Officer, Khagaria, whereby this petitioner was directed to lodge an F.I.R. against the complainant. In compliance with the direction of the Sub Divisional Officer, as submitted by the learned counsel for the petitioner, the petitioner filed a detailed report on 11.7.1998 before the Officer Incharge of 4 Alauli Police Station. On the basis of the written report of this petitioner, an F.I.R. vide Alauli P.S. Case No.63 of 1998 (Annexure-5) was registered on 11.7.1998 for the offence under Section 7 of the Essential Commodities Act against the complainant. 4. Sri S.D. Sanjay, learned counsel for the petitioner submits that after institution of the F.I.R. on the basis of written report of this petitioner, the police started investigation and in course of investigation, the complainant was arrested. Sri S.D. Sanjay ,learned counsel for the petitioner by referring paragraph nos. 10 and 11 of the present petition submits that after being released from the jail , the complainant with a view to wreak vengeance against this petitioner filed the present complaint petition. He submits that the present complaint petition was filed by the complainant on 1.9.1998. On perusal of paragraph 11 of the petition, it appears that the complainant was released from jail on 13.8.1998. Sri Sanjay , learned Counsel for the petitioner has argued that the facts indicated in Annexure-1 categorical makes it clear that the present petition was filed with mala fide intention and he submits that on the ground of malicious prosecution the order of cognizance is liable to be set aside and he also submits that the entire proceedings may be quashed. 5. Sri Vivekanand Singh, learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer 5 of the petitioner. He has raised preliminary objection on the point that at the initial stage of the criminal proceeding, this Court may not exercise its inherent jurisdiction under Section 482 of the Code of Criminal Procedure which, according to him, is to be exercised in exceptional and rarest of rare cases. He further submits that at the time of taking cognizance the facts which were brought before the learned Magistrate was sufficient to indicate commission of offence, as alleged by the complainant. He further submits that on the basis of materials, which were brought before the learned Magistrate, the learned Magistrate had got no option but to take cognizance of the offences and accordingly the learned Magistrate has committed no mistake, while passing the impugned order. Sri Singh has been supported by Smt. Indu Bala Pandey, learned Addl.Public Prosecutor, who appears on behalf of the State. 6. Besides hearing the learned counsel for the parties, I have also examined the materials available on the record as well as complaint petition and the impugned order of cognizance. It is true that while exercising power under Section 482 of the Code of Criminal Procedure, it is not desirable for this Court to examine those documents, which have been brought on record along with petition unless such documents is proved in accordance with law, but in peculiar facts and circumstances of the present case, I am of the view that if in the present case this Court fails to intervene, certainly it will amount to allowing the 6 abuse of the process of the court by the court below. It is also true that at the time of taking cognizance in view of materials placed before the learned Magistrate, the learned Magistrate had no option but to take cognizance of the offences but while exercising inherent jurisdiction of this Court, I have examined those materials, which categorically indicates that the present complaint was not filed honestly or truly. The petitioner, who was a public servant, while discharging his duty had conducted enquiry in the shop premises of the complainant long before the filing of the complaint case. The first inspection was conducted on 24.1.1998 and, thereafter conducted enquiry as directed by the superior Officer. Even he was directed to file F.I.R. and thereafter on the written report of this petitioner the F.I.R. vide Alauli P.S. Case No.63 of 1998 was registered against the complainant for the offence under Section 7 of the Essential Commodities Act. Sri S.D. Sanjay, while referring to paragraph nos.10 and 11 of the present petition, has categorically stated that only when he came out of the jail, the present complaint petition was filed. Accordingly I am of the view that for the ends of justice as well as to prevent the abuse of the process of the court , it is desirable to set aside the order of cognizance and all subsequent proceedings pursuant to the complaint petition filed by the complainant-Opp.Party no.2, 7. Accordingly the order dated 25.1.1999 passed by Sri A.B.R. Verma , Judicial Magistrate, 1st Class, Khagaria in 7 Complaint Case No.390(C) of 1998 as well entire criminal proceeding in Complaint Case No.390(C) of 1998 is hereby set aside so far as it relates to the petitioner. The petition is accordingly allowed. Patna High Court,Patna Dated : the 16th April,2010 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J )