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2010 DIGILAW 632 (PAT)

Shanti Devi v. State Of Bihar

2010-04-06

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. Two petitioners ,while invoking inherent jurisdiction of this Court under Sec.482 of the Code of Criminal Procedure , have prayed for quashing of the order dated 4.12.1998 passed by Sri B. N. Banerjee, Judicial Magistrate,1st Class, Motihari in Tr. No.1068 of 1999 arising out of Kesariya P. S. Case No.47 of 1998. By the said order, the learned Magistrate had taken cognizance under Sections 25 (1-A) b/26/35 of the Arms Act. The petitioners have further prayed for quashing of the entire criminal prosecution arising out of Tr. No.1068 of 1999/tr. No.1365/98. 2. Sri Anjani Kumar, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance as also for quashing of entire proceeding, submits that the present case was filed maliciously. Learned counsel for the petitioners submits that petitioner no.1 was a teacher in a Government Middle School and since earlier the husband of petitioner no.1 had filed a complaint petition in the year 1996 against the Officer Incharge and other police officials of Kesariya Police Station as well as Chakiya Police Station, by filing the present case the entire family members of petitioner no.1 has been made accused in the present case. Learned counsel appearing on behalf of the petitioners further submits that in the year 1996 itself, a partition had already taken place in between the family members of the petitioners and the arms in question was not recovered from the premises, which were allocated to the petitioners. Learned counsel has referred to several documents, which have been enclosed along with the present petition and tried to impress upon the Court that neither any case is made out against the petitioners nor the prosecution, in the present case, can be considered as fair and honest prosecution. On these grounds, he has made a prayer for quashing the order of cognizance and the entire criminal proceeding in the case. 3. Smt. Indu Bala Pandey, learned counsel appearing on behalf of the State has vehemently opposed the prayer of the petitioners. In this case earlier case diary was called for. While referring to certain paragraphs of the case diary, Smt. Pandey submits that the case diary categorically indicates that illegal arms in question were recovered from the premises of the petitioners and, as such, there is no question for falsely implicating the petitioner no.1 or her entire family members. In this case earlier case diary was called for. While referring to certain paragraphs of the case diary, Smt. Pandey submits that the case diary categorically indicates that illegal arms in question were recovered from the premises of the petitioners and, as such, there is no question for falsely implicating the petitioner no.1 or her entire family members. She submits that even if for the time being it is accepted that earlier the husband of petitioner no.1 had filed a complaint against the police officials, it cannot be a ground to assail the prosecution in the present case. She further submits that as alleged by the petitioners, complaint case against the then Officer Incharge of Kesariya Police Station and other police officers was filed in the year 1996. Had there been any grudge in respect of filing this complaint petition, the petitioners would have been implicated by the police officers earlier and they would not have waited for about two years to implicate the petitioners. 4. I have also examined materials available on the record as well as the impugned order. F. I. R. in the present case,i. e. Kesariya P. S. Case No.47 of 1998 indicates that the police party pursuant to execution of process under Sec.83 of the Code of Criminal Procedure conducted a raid in the house of the petitioners and during raid , an illegal rifle ,22 cartridges of the rifle and one cartridge of the Gun were recovered from the premises in question. It also appears that one son of the petitioners, namely, Pankaj Singh, who has been made accused in the present case also, was made accused in Chakiya P. S. Case No.31 of 1998 for the offence under Sec.392 of the Indian Penal Code. In the said case, he was absconding and, as such, processes under Sections 82 and 83 of the Code of Criminal Procedure were issued in that case and while executing the same from the premises of the petitioners, arms in question were recovered. 5. So far as the defence, which has been taken by the petitioners that the case has been filed by the police due to mala fide intention, is concerned, I am of the view that all these points cannot be considered by this Court while exercising its inherent jurisdiction under Sec.482 of the Code of Criminal Procedure. 5. So far as the defence, which has been taken by the petitioners that the case has been filed by the police due to mala fide intention, is concerned, I am of the view that all these points cannot be considered by this Court while exercising its inherent jurisdiction under Sec.482 of the Code of Criminal Procedure. At the moment after submission of the chargesheet , the learned Magistrate has only taken cognizance of the offence. The documents, which have been referred to by the learned counsel for the petitioners and enclosed with the present petition, may not be looked into by this Court at this stage, due to the simple reason that those documents have not got not proved. Simply those documents have been enclosed with the present petition. Moreover, such plea can be taken before the trial court at the appropriate stage. This is not the stage for raising all these points. 6. In view of the facts and circumstances, I do not fine any merit in the present petition and the petition stands rejected. 7. By the order dated 23.7.1999, while admitting the present petition, this Court had directed that during the pendency of this application, further proceedings in Kesaria P. S. Case No.47 of 1998 pending in the court below shall remain stayed. 8. In view of rejection of this petition, order of stay stands automatically vacated. 9. Let a copy of this order be communicated to the court below forthwith. Case diary, which was earlier called for and received, be also remitted back to the court below.