Criminal Miscellaneous No.25190 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedured. ------------ BISHUNDEO YADAV, SON OF RAM BALAY YADAV, RESIDENT OF VILLAGE CAURICHAK, POLICE STATION KHUSRUPUR, DISTRICT, PATNA………………………………………………..…….…PETITIONER Versus 1. STATE OF BIHAR 2. MAHASUNDRI DEVI WIFE OF CHANDRADEEP MAHTO, RESIDENT OF VILLAGE-SAFIPUR BANSTOLI, POLICE STATION-KHUSRUPUR, DISTRICT-PATNA………………………………...…OPPOSITE PARTIES. ----------- For petitioner:-Mr. Rajeev Ranjan Sinha, Advocate For State:- Hirday Prasad Singh, APP P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH Shiva Kirti Singh, J. Heard learned counsel for the petitioner and learned counsel for the state. 2. Petitioner has prayed for quashing of FIR of Khusrupur P.S. Case 43 of 1997 and the consequent Sessions Trial No. 841 of 1996 pending in the court of Additional Sessions Judge, XIth, Patna. 3. It has been shown from Annexure-1 that on 9.4.1997 the informant gave a report to the Officer Incharge of Khusrupur P.S. on the basis whereof a case under Section 341, 354, and 509 of the IPC was instituted. It further appears from Annexure-2 that in that case the informant filed a protest-cum-complaint petition alleging that she had 2 been subjected to an offence under Section 376 IPC but the police officer at Khusrupur P.S. played fraud with her and obtained her thumb impression on a plain paper and did not call her for medical examination and she is shocked to see the accused moving out freely. She disclosed that she is a member of scheduled caste and the accused is an influential person and hence she has given a representation in the matter to Dy.S.P, Patnacity on 13.4.1997. 4. According to learned counsel for the petitioner the said case is still pending on account of complaint-cum-protest petition in which the informant is not appearing whereas in violation of legal norms and settled principle that for the same occurrence no two cases should be instituted by the police another case bearing Khusrupur P.S. Case 43 of 1997 under Section 376 of the IPC was registered on 2.6.1997 on the basis of fardbeyan of informant recorded by Dy. Superintendent of Police. on 2.6.1997 for the same occurrence for which she had lodged Khusrupur P.S. Case 27 of 1997. Admittedly, the second case was investigated and upon charge-sheet submitted by the police the court of Magistrate has taken cognizance and thereafter the case has been committed to the court of sessions where it is pending for trial. 5. The prayer is to quash the aforesaid pending trial of the petitioner on the ground that earlier filed case bearing Khusrupur P.S. 3 Case 27 of 1997 is still pending before the Magistrate because of non appearance of the informant to support or press her complaint/protest petition. 6. It has rightly been submitted on behalf of the petitioner that police should not have instituted second case for the same offence and only the first case should have proceeded either on the basis of police report or on the basis of protest-cum-complaint petition in accordance with law. 7. However such illegality or irregularity by the police at the initial stage of lodging of the case whether can affect the pending trial and its legality is a question to be answered in this case. The general law is well settled that irregularities or illegalities in course of investigation do not affect the power of the court when the matter has reached the stage of consideration by the court. In this case the only relevant principle applicable would be the law which prohibits double jeopardy as incorporated in Section 300 of the Cr.P.C. According to that provision a person once convicted or acquitted cannot be tried for the same offence. 8. Admittedly, in the first case the petitioner has not been tried as yet and he cannot claim that he has either been convicted or acquitted. Hence, in law there is no bar to the trial of the petitioner in the second case i.e. Khusrupur P.S. Case 43 of 1997. In view of such legal 4 principle no interference is required in the matter. There is yet another aspect which requires consideration. This Court has been approached under Section 482 of the Code of Criminal Procedure which is an inherent power to be exercised sparingly only to promote interest of justice or to prevent an abuse of the process of court. 9. Considering the facts of this case, this Court finds that no interference is required in the interest of justice nor there is any question of abuse of the process of the court. Hence, this application is dismissed. 10. It is made clear that any observation made in this order shall not prejudice the defence of the petitioner who will be at liberty to take all defence as per law at appropriate stage including at the stage of framing of charges. Patna High Court The 6th of May, 2010 Md. Perwez Alam/AFR. (Shiva Kirti Singh, J.)