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2005 DIGILAW 138 (PAT)

Basant Kumar Mishra v. State Of Bihar

2005-02-09

GHANSHYAM PRASAD

body2005
Judgment 1. This is an application under Section 482, Cr PC for quashing the impugned order dated 3.9.1993 passed by Shri N. Prasad, Judicial Magistrate 1st Class, Darbhanga in Complaint Case No. 31 of 1992, Trial No. 640 of 1992 thereby and thereunder the learned Magistrate has issued summons against the petitioner and others to face trial under Sections 323, 147, 447, 452 and 380 of IPC. 2. Heard the learned lawyer for the petitioner as well as learned counsel for the State. No one turned up on behalf of the opposite parties in spite of service of notice. 3. The facts giving rise to this application are as follows. The Opposite party No. 2, Umakant Mishra filed a complaint case before the Court of CJM, Darbhanga against petitioner Basant Kumar Mishra and three others alleging therein that on 11.1.1992, all the named accused persons including the present petitioner were forcibly ploughing ancestral land of the complainant. The son of the complainant Ashok Kumar Mishra protested upon which the accused persons bent upon to assault him. Ashok Kumar Mishra fled away and returned to his house. In the meantime, all the named accused persons including this petitioner entered in the courtyard of the complainant and stealthily took away articles belonging to the complainant worth Rs. 10,000/-. The female inmate Raj Kumari Devi protested upon which accused Surendra Kumar Singh caught hold her and threw on the ground as a result of which she became unconscious. 4. It has been further alleged that on that very day the complainant was not in the house. He returned on 13.1.1992. Thereafter, he came to know about the occurrence and filed complaint petition on 15.1.1992 in the Court of CJM, Darbhanga. 5. The learned CJM after taking con-ginzance transferred the same under Section 192(1), Cr PC in the Court of Mr. N. Prasad, Judicial Magistrate, Darbhanga for enquiry and disposal. 6. The learned Court below examined two witnesses in course of enquiry and thereafter, issued summons against the petitioner and others vide his order dated 3.9.1993. 7. It is contended on behalf of the petitioner that the order in question is bad and illegal as the genesis of the occurrence is palpably false. On the alleged date of the occurrence i.e., 11.1.1992, the aforesaid Ashok Kumar Mishra, the son of the complainant, was in jail. 7. It is contended on behalf of the petitioner that the order in question is bad and illegal as the genesis of the occurrence is palpably false. On the alleged date of the occurrence i.e., 11.1.1992, the aforesaid Ashok Kumar Mishra, the son of the complainant, was in jail. He was arrested by the police on 1.1.1992 at 11.30 a.m. from his village and thereafter the police produced him before the Court of the CJM at 1.30 p.m. under police escort who remanded him to judicial custody in connection with Darbhanga P.S. Case No. 3 of 1992 instituted under Sections 444, 341, 323, 504 and 307, IPC. It is further contended that the report of the police in this connection was called for by the Court below himself. The police submitted his report but the learned lower Court passed the impugned order without looking into it. For the above submission, the learned counsel for the petitioner relied upon decisions of learned Apex Court, Smt. Nagawwa v. Veeranna Shivalingappa, reported in AIR 1976 SC 1947 and a case State of Haryana v. Bhajan Lal, reported in AIR 1992 SC 607. 8. On the other hand, the learned lawyer for the State submits that the inherent jurisdiction of the High Court to quash a criminal proceeding should be exercised in rarest of rare case only in order to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. A criminal proceeding should not be quashed merely on the basis of defence story. The prosecution must get opportunity to substantiate his allegation levelled in the complaint petition. It is further submitted that the learned lower Court has rightly did not consider the report of the police as it was a defence version and it needed to be examined at the stage of the trial. 9. On mere perusal of the complaint petition annexed with the application, it is quite apparent that there is two part of the occurrence; one ploughing the ancestral land of the complainant by the petitioner and other named accused persons and the other part of the occurrence is commission of theft of the articles from the house of the complainant. Presence of Ashok Kumar Mishra is mentioned in the complaint petition only at the stage of ploughing of the field by the accused persons. Presence of Ashok Kumar Mishra is mentioned in the complaint petition only at the stage of ploughing of the field by the accused persons. Even if the contention of the learned lawyer for the petitioner is accepted that Ashok Kumar Mishra was not present at the time of the alleged occurrence of ploughing field, the second part of the occurrence regarding commission of the theft cannot be disbelieved or thrown out at this stage. The complainant must get an opportunity to prove his case as alleged in the complaint petition. 10. Decisions cited by the learned lawyer for the petitioner are not applicable in this case. Both the decisions say that the process issued against the accused can be quashed or set aside only where the allegations in the complaint petition are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused or the criminal proceeding is instituted maliciously with a view to spite him due to the private and personal grudge. In the instant case, the allegation made in the complaint petition cannot said to be inherently and patently absurd and improbable. At this stage, there is no material, worth the name, on the record to show that the proceeding is maliciously instituted only due to private and personal grudge. 11. In view of the aforesaid facts and circumstances of the case, I find no reason to interfere in the impugned order passed by the Court below. The petitioner has miserably failed to make out a clear case for quashing of the criminal proceeding instituted against him. Accordingly, this application is dismissed.