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2010 DIGILAW 1366 (PAT)

Mahendra Prasad v. State Of Bihar

2010-06-24

RAKESH KUMAR

body2010
JUDGEMENT RAKESH KUMAR, J. 1. In this case, none has appeared on behalf of the petitioners. On 26.4.2010, when the case was called out, none appeared and thereafter, the case was adjourned for a day as a last indulgence. Thereafter, on 27.4.2010 again, none appeared on behalf of the petitioners, however, Mr. Bhubneshwar Prasad, learned counsel appeared on behalf of opposite party no.2. I have also heard Shri Hriday Prasad Singh, learned Additional Public Prosecutor appearing on behalf of the State. 2. Three petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of entire criminal proceeding in Complaint Case No.C R 1206 of 1998/T.R. No.630 of 1999 and also for quashing of the order dated 6.4.1999 passed by learned Judicial Magistrate, 1st Class, Darbhanga. By the said order, the learned Magistrate, after conducting enquiry, was satisfied that prima facie case against petitioners were made out for the offence under Sections 323, 379, 504/34 of the Indian Penal Code and, accordingly, directed for issuance of process for securing attendance of the accused persons. 3. Short fact of the case is that opposite party no.2 filed aforesaid complaint on 21.12.1998 disclosing therein that he was having a piece of land in Mohalla Sunderwan Navtolia. It was alleged that the petitioners forcefully occupied the said land and converted the same into the passage (Rasta). It was further disclosed that accused persons had threatened him to give the said piece of land to them otherwise the complainant will be killed. The complainant had also held a panchayati in respect of illegal conversion of his land into Rasta. It was alleged that on 27.11.1998 at 8.00 A.M., while the complainant had gone to his land, all the accused persons surrounded him and they assaulted the complainant by fist and lathi. In the said occurrence, it was alleged that petitioner no.2 took his golden chain of Rs.6,000/- and petitioner no.3 took hundred rupees from this pocket as well as his watch. On the aforesaid allegation, the complaint petition was filed in the court of the Chief Judicial Magistrate, Darbhanga and the learned Chief Judicial Magistrate under Section 192(1) of the Code of Criminal Procedure transferred the case for enquiry and disposal to the court of Judicial Magistrate, 1st Class. On the aforesaid allegation, the complaint petition was filed in the court of the Chief Judicial Magistrate, Darbhanga and the learned Chief Judicial Magistrate under Section 192(1) of the Code of Criminal Procedure transferred the case for enquiry and disposal to the court of Judicial Magistrate, 1st Class. Thereafter, the complainant was examined on S.A. and in support of the complaint petition, two witnesses, namely, Om Prakash and Tarkeshwar Sah were examined. The learned Magistrate was prima facie satisfied that offence under Sections 323, 379, 504/34 of the Indian Penal Code was made out and by order dated 6.4.1999 after taking cognizance directed for issuance of process for securing attendance of accused persons. 4. Aggrieved with the order of cognizance as well as initiation of the proceeding on the basis of complaint filed by the opposite party no.2, the petitioners approached this Court by filing the present petition, which was admitted for hearing on 22.6.2000 and while admitting, this Court had directed to call for the lower court record and thereafter, lower court record was received and same is lying with the record of the case. 5. The petitioners, while challenging the entire proceedings, have stated in its petition that the petitioner no.1 is father of petitioner nos.2 and 3 and the present complaint petition was filed by the opposite party no.2 as a counter blast to the case, which was registered on the basis of written report submitted by petitioner no.1 against the opposite party no.2 and others. On written report of petitioner no.1, an F.l.R. vide Bahadurpur RS. Case No.237 of 1998 was registered on 19.12.1998 for the offence under Sections 147, 341, 323, 504 and 384 of the Indian Penal Code. As per the said F.I.R., occurrence had taken place on 27.11.1998 at 9.00 A.M. It was alleged by petitioner no.1 that on the date of occurrence, the complainant/opposite party no.2 had come to the house of petitioner no.1 and demanded rangdari and on refusal, he was assaulted by accused persons including the opposite party no.2 and as such the aforesaid F.l.R. was lodged. 6. Learned counsel appearing on behalf of opposite party no.2 has argued that this petition is liable to be rejected. 6. Learned counsel appearing on behalf of opposite party no.2 has argued that this petition is liable to be rejected. He submits that the complaint petition as well as statement of complainant recorded on S.A. and evidence of two enquiry witnesses categorically discloses the commission of offences by the petitioners and the learned Magistrate has rightly taken cognizance of the offences. He submits that whatever defence, petitioners want to take they can take during the trial before the court below and this Court may not interfere with the proceeding, which has been validly initiated against the petitioners. Accordingly, he has prayed that the petition may be rejected. 7. Learned counsel for the State has supported the stand of the opposite party no.2. 8. Since none appeared on behalf of the petitioner, I myself examined the materials available on record including lower court records. Of course, in the petition, the petitioners have prayed for quashing of entire proceeding including order dated 6.4.1999 whereby order of cognizance was passed, but after examining the record, it transpires that in this case on 3rd June,2000, charges were framed against all the three accused persons for the offence under Sections 323, 504 and 34 of the Indian Penal Code. The petitioner nos.2 and 3, namely, Ravi Shankar Prasad @ Bholi and Sanjay Prasad were further charged for the offence under Section 379 of the Indian Penal Code. From the record, it further appears that in the case, which was registered on the basis of written report of petitioner no.1 i.e. Bahadurpur P.S. Case No.237 of 1998, the police after investigation, had submitted charge sheet against the complainant/opposite party no.2 and other four accused persons for the offences under Sections 147, 141, 323, 504. 384 of the Indian Penal Code. Meaning thereby that police, which is the statutory investigating agency, had found the allegation made by petitioner no.1 against the opposite party no.2 and others as true and thereafter, charge sheet against them was submitted. Fact remains that in the F.l.R. i.e. Bahadurpur P.S. Case No.237 of 1998, time and date of occurrence was alleged as 9.00 A.M. on 27.11.1998. However, in the present complaint petition, the opposite party no.2 had filed the complaint after lodging of the F.I.R. i.e. Bahadurpur P.S. Case No.237 of 1998 and the complainant described the time and date of alleged occurrence as 8.00 A.M. on 27.11.1998. However, in the present complaint petition, the opposite party no.2 had filed the complaint after lodging of the F.I.R. i.e. Bahadurpur P.S. Case No.237 of 1998 and the complainant described the time and date of alleged occurrence as 8.00 A.M. on 27.11.1998. This fact obviously creates serious doubt on the veracity of the complaint petition. Moreover, in this case, the alleged occurrence had taken place in the year 1998 and now after lapse of more than 12 years, it would not be appropriate to direct the petitioners to participate in the trial for such doubtful alleged offences and, accordingly, with a view to prevent the abuse of the process of the court, it is desirable to interfere with the criminal proceeding, which has been initiated against the petitioners in Complaint Case No.CR 1206 of 1998/T.R. No.630 of 1999. 9. Accordingly, this petition stands allowed and entire criminal proceeding against all the three petitioners in Complaint Case No.CR 1206 of 1998/T.R. No.630 of 1999 is hereby set aside.