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2010 DIGILAW 636 (PAT)

Manjoor Ali Khan v. State Of Bihar

2010-04-06

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of order dated 19.6.1998 passed by Shri S.K. Singh, Judicial Magistrate, 1st Class, Buxar in Case No. 9(c) of 1998/58 of 1998. By the said order, learned Magistrate has taken cognizance for the offences under Sections 406 and 380 of the Indian Penal Code against the petitioner and others. 2. While challenging the order of cognizance, Shri Krishna Prasad Singh, learned senior counsel for the petitioner argued that the present complaint petition was filed maliciously. He submits that the complainant is the father of son-in-law of the petitioner. Earlier on an allegation of committing offence under Section 498-A of the Indian Penal Code, this petitioner had filed an FIR vide Daudnagar P/S. Case No. 20 of 1994, which was registered on 17.3.1994 against the complainant, his son and other family members. He further submits that the daughter of the petitioner had also filed a petition for maintenance vide Maintenance Case No; 28 of 1994 and till the date of filing of the present compaint, the maintenance case was still pending. He submits that since cases were filed against the complainant and their family members either by petitioner or his daughter with a view to take revenge, the present complaint petition was filed by the complainant. 3. Learned senior counsel further submits that cor plaint case No. 9(C) of 1998, which was earlier filed by the complainant stood rejected under Section 203 of the Cr PC. Against the order of rejection of complaint petition, the complainant filed a revision case vide Cr. Revision No. 9 of 1998. However, the learned Revisional Court allowed the revision petition on 19.1.1998 and remitted back the matter to the Magistrate. Subsequently, after conducting enquiry, the learned Magistrate by the impugned order i.e. order dated 19.6.1998 has taken cognizance for the offence under Sections 406 and 380 of the Indian Penal Code. 4. On perusal of the complaint petition, it is evident that an allegation was made by the complainant that in relation to compromise in maintenance case, the accused persons of the complaint case had arrived at the residence of the complainant at Dumrao, Bhojpur. It was alleged in the complaint petition that they stayed in a Baithaka of the complainant in the night. It was alleged in the complaint petition that they stayed in a Baithaka of the complainant in the night. However, early in the morning, accused persons including this petitioner left the house of the complainant along with the articles as mentioned in the last paragraph of the complaint petition. It has been alleged that the property to the tune of Rs. 5,000/- was stolen by this petitioner and his two sons. 5. Shri Jagdish Prasad No. 1, learned counsel appearing on behalf of opposite party No. 2 has vehemently opposed the prayer of the petitioner. Firstly, he submits that petition, at this stage, is not maintainable. He submits that at the moment, the learned Magistrate had taken cognizance after conducting an enquiry and as such at this initial stage, this Court may not exercise its inherent jurisdiction under Section 482 of the Code of Criminal Procedure. He submits that whatever the defence the petitioner wants to take can take at an appropriate stage before the learned Magistrate. 6. Learned counsel appearing on behalf of opposite party No. 2 has candidly submitted that since the petitioner and his daughter were repeatedly filing cases at Auranbadnd, which is far away from the residences of this petitioner the petitioner, with a view to take revenge, had filed the present complaint petition. 7. Learned counsel appearing on behalf of the opposite party No. 2 has submitted that the son of the complainant is still ready to keep his wife with him and he had prayed to pass some direction to this effect. 8. I am of the view that while hearing a petition challenging the order of cognizance in a complaint case filed by opposite party No. 2, it would not be proper for this Court to pass any direction and give any observation on such point which has got no bearing with the present case. 9. I have perused the complaint petition as well as materials available on record and also the order of cognizance. 10. In view of the facts and circumstances as has been brought on record, I am of the view that the proceeding in the present complaint petition appears to be malicious and as such the order of cognizance is liable to be set aside. 10. In view of the facts and circumstances as has been brought on record, I am of the view that the proceeding in the present complaint petition appears to be malicious and as such the order of cognizance is liable to be set aside. If a Court is satisfied that prosecution has been initiated with malice, then for the ends of justice, it would be appropriate to exercise inherent jurisdiction of this Court even at initial stage. Allowing such prosecution. I am of the view, will amount to allowing abuse of the process of the Court and as such in the facts and circumstances of the present case, the order of cognizance dated 19.6.1998 passed by Shri S.K. Singh, Judicial Magistrate, 1st class, Buxar in Special case No. 9(c) of 1998/58 of 1998 is hereby set aside and petition stands allowed. 11. Accordingly, the petition stands allowed.