IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28860 of 2010 1. Aawadhesh Kumar, son of Asarfi Rai, Sub Inspector, Buxar (Town) Police Station, District-Buxar. 2. Taslim Khan, son of Late Naim Khan, Assistant Sub Inspector, Buxar Town Police Station, District-Buxar. ….PETITIONERS. Versus 1. The State Of Bihar. 2. Sudhakar Prasad, son of late Rama Shankar Prasad, resident of Munim Chowk, Buxar, P.S.-Buxar Town, District-Buxar. ….OPPOSITE PARTIES. ----------- 3 4/11/ 2011 Petitioners, Awadhesh Kumar, Sub Inspector of Buxar Town P.S. and Taslim Khan, A.S.I. Buxar Town P.S. challenged the order dated 16.02.2010 passed by learned CJM in Complaint Case No.1168 of 2009 whereby and where under they have been summoned to face trial for an offence punishable under Section 323, 504 of the I.P.C. Sudhakar Prasad filed complaint petition on 07-12-2009 for an occurrence dated 06-12-2009 disclosing therein that on the alleged date and time of occurrence while the complainant was engaged in his professional work, both the accused came in plain cloth, abused. On query, they have disclosed that his son Taslim had abused relative of accused Taslim Khan. Then thereafter Awadhesh Kumar twisted his hand and Taslim Khan took out Rs.1200/-. Then thereafter they returned back and during course of thereof, they have apprehended his son, and put up under police lock up and after keeping there for 22 hours he was released. The learned CJM conducted inquiry under Section 202 of the Cr.P.C. and then by the order impugned took cognizance of an offence and summoned the petitioners to face trial for an offence punishable under Section 323, 504 of the I.P.C. Contention on behalf of the petitioners are that petitioners have fallen victim of malice and grudge. Also submitted that the whole 2 allegation whatever been alleged is nothing but malicious prosecution filed with ulterior motive for wrecking vengeance in the background of the fact that the son of complainant was apprehended while was gambling along with others for which Town P.S. Case No.335 of 2009 was registered under Section 11 of the Gambling Prohibition Act on 06- 12-2009 and then thereafter, was released on bail from the P.S. itself after furnishing of bail bond. Thereafter, the compliant who himself happens to be an advocate got this case filed on 07-12-2009 and to support the same, Annexure-3 has been placed. So submitted that in the aforesaid background petitioner’s prayer come within the purview of the categories laid down by the Hon’ble Apex Court in a case reported in AIR 1992 Supreme Court page 604, popularly known as Bhajan Lal case and so submitted that it is fit case wherein the order impugned is liable to be quashed along with complaint petition. Learned A.P.P. opposed the prayer and submitted that there happens to be no illegality in summoning the petitioner by the order impugned which indicates application of judicial mind. However, fairly submitted that from Annexure-3, inconsonance with the averments made in complaint petition itself, there happens to be admission with regard to apprehension of son of complainant. In a decision report in 2011(3) P.L.J.R. page 100(SC) at para 21 it has been held: ………………………………………………………… ………………………………………………………… “it is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark 3 upon an inquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents which are beyond suspicion or doubt placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process the High Court may look into the materials which have significant bearing on the matter at prima facie stage. In another decision reported in 2011 Criminal Law Journal page 2594 at para 13 it has been held: “This Court, in a number of cases, has laid down the scope and ambit of the High Court’s power under section 482 of the Code of Criminal Procedure. Inherent power under section 482, Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute”. After having analytical approach of the averments made in complaint petition in comparison to Annexure-3, the existence of allegation appears to be brought up out of spite against the petitioners due to private and personal grudge as a result of which the order impugned is set aside. This petition is accordingly allowed. PN (Aditya Kumar Trivedi,J.)