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2004 DIGILAW 1044 (PAT)

Anil Kumar Mishra v. State Of Bihar

2004-09-29

NAVIN SINHA

body2004
Judgment 1. Heard learned counsel for the petitioners. Despite issuance of notices to opposite party No. 2 and service thereof none has appeared on their behalf to contest the present proceedings. 2. The two applications contain a common thread. The petitioners in Cr. Misc. No. 28724 of 2003 are the father and son respectively. The petitioners in Cr. Misc. No. 28089 of 2003 are the sons of petitioner No. 1 of the former case, including petitioner No. 2 therein. 3. The Complaint Case No. 376(C) of 2002 gives rise to Cr. Misc. No. 28724 of 2003 and is the background in which Complaint Case No. 401 of 202 originates giving rise to Cr. Misc. No. 28089 of 2003. This Court, for convenience, would take-up Cr. Misc. No. 28724 of 2003 for consideration first Complaint Case No. 376 of 2002 was instituted by one Pitambar Jha on 26.8.2002. Cognizance has been taken thereunder under Sections 374 and 323 of the Penal Code. 4. The learned counsel for the petitioners submits that on the face of the allegations the same are inherently absurd and improbable. The complainant is alleged to have laboured for 20 years since 1982 as a domestic help in the house of the petitioners without any remuneration or adequate remuneration and yet the complainant did not protest or resort to any proceedings. The institution of the present complaint after 20 years on 26.8.2002 is self-explanatory of the nature of the prosecution. The allegations under Section 323 appear to have been made only to lend weight to the complaint. It is the contention on behalf of the petitioners that the complainant having quit the services of the petitioners about six to seven years ago has filed the present case at the instigation of their relative Anil Kumar Mishra, the complainant in Complaint Case No. 401 of 2002, with whom the present petitioners have serious differences and disputes with regard to monetary business transactions. It is thus submitted that the present complaints fell within category 7 of the principles laid down in AIR 1992 SC 604 , State of Haryana V/s. Bhajan Lal. The criminal proceeding was therefore manifestly attended with mala fide and was maliciously instituted with an ulterior motive for wreaking vengence on the accused and with a view to spite them due to private and personal grudge. The criminal proceeding was therefore manifestly attended with mala fide and was maliciously instituted with an ulterior motive for wreaking vengence on the accused and with a view to spite them due to private and personal grudge. This would be apparent from a conjoint reading of the two complaint cases. Concluding the submission it was pointed out that Complaint Case No. 376 of 2002 came to be instituted on 26.8.2002 and Complaint Case No. 401 of 2002 came to be instituted on 3.9.2002. The proximity in time of the two cases was not a coincidence. It was thus submitted that the order of cognizance dated 30.7.2003 and the entire proceedings in Complaint Case No. 376 of 2002 were vitiated in law and merited interference by this Court under Section 482. The mala fide nature of the prosecution was writ large on the face of it. 5. Cr. Misc. No. 28089 of 2003 arising out of Complaint Case No. 401 of 2002 filed on 3.9.2002 was based in the background of Complaint Case No. 376(C) of 2002. The allegation in the present complaint was an alleged insult and anonymous threates for having instigated the aforesaid Pitambar Jha [Complainant in Complaint Case No. 376(C) of 2002] to insist on his legal rights by institution of a criminal prosecution. Cognizance in Complaint Case No. 401 of 2002 has been taken under Sections 504 and 507 of the Penal Code. Learned counsel for the petitioners submits that the complaint on the basis of the averments made therein does not disclose any offence under Sections 504 and 507 of the Penal Code. It is further submitted mere use of abusive words would not suffice in absence of the details in the application with regard to the nature of the words used or supposed to have been used as words of insult in the complaint case. Reliance for the same was placed upon, AIR 1955 Patna 453 and 1988 SCC (Cr.) 129. 6. In so far as charge under Section 507 be concerned, it was submitted that the same related to a person making an anonymous communication concealing the name or abode of the person on whose behalf the anonymous communication was being made. It was thus submitted that on the basis of the allegations in the complaint no offence under Section 507 would be made out against the petitioners. It was thus submitted that on the basis of the allegations in the complaint no offence under Section 507 would be made out against the petitioners. The charge thereunder would lie against persons who made the anonymous communication. 7. Learned counsel for the petitioners thus submitted that Complaint Case No. 401 of 2002 was likewise vitiated for reasons of mala fides on basis of category 7 of Bhajan Lals case (supra). The petitioners are own cousins and that there are serious disputes/differences between them for reasons of money transactions in business, apart from other litigations mentioned in the petition under Section 482, Cr PC. 8. This Court having considered the submissions as made on behalf of the petitioners and after having perused the complaint petitions in both cases, arrives at the conclusion that both the complaints on the face of the allegations do not constitute sufficient materials prima facie disclosing the necessity of compelling the petitioners to face the rigours of a criminal trial. The law in this regard stands succinctly laid down in AIR 1998 SC 128, M/s. Pepsi Foods Limited V/s. Special Judicial Magistrate. The filing of a complaint case simply does not require supporting the allegations by deposition of witnesses which would ipso facto set the criminal law in motion concluding only in acquittal or conviction. In a proceeding under Section 482, Cr PC this Court would be justified in looking into the attending circumstances and the case as apparent to ascertain if the prosecution was bona fide or was initiated to settle scores. The nature of the allegations, the time period to which the offence relate, the proximity in time of the institution of the two complaint cases, the relationship between the parties are all factors which cannot be overlooked, and after consideration would have to be balanced on the scale for scope of interference in proceedings under Section 482, Cr PC. 9. This Court on the basis of the discussions contained hereinabove records the conclusion of satisfaction that both Complaint Case No. 376(C) of 2002 and 401 (C) of 2002 fall well within category 7 of the Bhajan Lals case (supra), as having its origins in malicious institution with a desire to wreak personal vengence. The long delay of 20 years in Complaint Case No. 376(C) of 2002 cannot be overlooked. The long delay of 20 years in Complaint Case No. 376(C) of 2002 cannot be overlooked. The allegations in Complaint Case No. 401 (C) of 2002 do not make out any offence under Sections 504 and 507 of the Penal Code. 10. To support a charge under Section 504 of the Penal Code would require that there must be an intentional insult of a nature to give grave provocation to any person. The maker of the insult should have the requisite knowledge of the consequence of the breach of public peace which would be occasioned in the consequence. It would be necessary to give out the actual words used in absence of which it would be difficult to appreciate the aspect of intentional insult. There is no allegation in the present complaint that the words of insult were of a nature to provoke breach of peace and neither are the words of insult mentioned in the complaint. The basis for constituting an offence thereunder being absent in the complaint necessitates interference by this Court in exercise of powers under Section 482, Cr PC. 11. A reference to the judgment reported in 2004 (3) East Cr C 89 (SC): 2004 (6) SCC 522 , State of Andhra Pradesh V/s. Golkunda Linga Swamy and another, with regard to category 7 of the Bhajan Lals case (supra) would be illuminating. Discussing the entire conspectus of the case laws with regard to quashing of prosecution at the initial stage under Section 482, Cr PC, more particularly with regard to category 7 their Lordships in paragraph 7 have held : "In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code the High Court would not ordinarily embark upon an enquiry whether the evidence in question, is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of operation, or, needless harassment. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of operation, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, least it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. (emphasis added) 12. In the circumstances, both the applications are allowed and the prosecution of the petitioners in Complaint Case No. 376 of 2002 and Complaint Case No. 401 of 2002 pending before the learned Judicial Magistrate, Supaul including the order of cognizance dated 30.7.2003 and 15.7.2003 respectively are quashed. 13. The applications stands allowed.