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2012 DIGILAW 1373 (PAT)

Puja Gupta v. State Of Bihar

2012-09-26

HEMANT KUMAR SRIVASTAVA

body2012
ORDER Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State as also heard learned counsel appearing for Opposite party No. 2 and in my view, this petition can be disposed of on the admission stage itself. 2. Petitioners, while invoking the extraordinary jurisdiction of this court, pray for quashing the order dated 16-03-2009 passed by Sri Shivchand, learned Judicial Magistrate-Ist Class, Munger in Complaint Case No. 1175 (C) of 2008 by which and whereunder, he, having found prima facie case under Sections 323, 504 of the Indian Penal Code, ordered to issue summons against petitioners. 3. The brief fact which lies to file this quashing petition is that Opposite party No. 2 filed Complaint Case No. 1175 (C) of 2008 against petitioners alleging therein inter alia that on 23-10-2008 at about 5.00 p.m. while he was returning to his home and reached near the house of one, Anil Sah, petitioners were sitting on verandah of the house of Fufa and called him and after that, the petitioner Nos. 2, 3 & 4 came there and caught hold of him. Furthermore, he alleged that the aforesaid petitioners started assaulting him with fist and slaps and also asked from him to withdraw the case which had been filed by him against the brother of aforesaid petitioners. In the meantime, petitioner No. 1 brought a plain paper and handed it over to petitioner No. 2 who asked the complainant to put his signature on the aforesaid blank paper and when Opposite party No. 2 refused to obey the command, the petitioner No. 1 took out a pistol and put the said pistol on the chest of Opposite party No. 2 and threatened him and, thereafter, Opposite party No. 2 put his signature on plain paper out of the fear which was kept by petitioner No. 1. Furthermore, it is alleged that petitioner No. 5 took out Rs.2600/- and some documents from the pocket of the Opposite party No. 2 whereas; petitioner No. 3 snatched gold ring worth Rs.7,000/- from the Opposite party No. 2. After the aforesaid occurrence, the informant went to concerned police station with intent to lodge the case but the concerned police officials asked him to file complaint case in court and thereafter, Opposite party No. 2 filed the above-said case. After the aforesaid occurrence, the informant went to concerned police station with intent to lodge the case but the concerned police officials asked him to file complaint case in court and thereafter, Opposite party No. 2 filed the above-said case. The learned Chief Judicial Magistrate transferred the aforesaid complaint case to the court of Sri Shivchand, Judicial Magistrate-Ist Class, Munger for conducting an inquiry u/S 202 of the Cr. P.C. The above-said court conducted an inquiry u/S 202 of the Cr. P.C. and having found prima facie case u/Ss 323, 504 of the of the Indian Penal Code, passed the impugned order dated 16-03-2009 in the manner as stated above. 4. Learned counsel appearing for petitioners submits that petitioner No. 1 is legally wedded wife of Opposite party No. 2 and petitioner Nos. 2 to 4 are brothers-in-law of Opposite party No. 2 whereas; the petitioner No. 5 is wife of Opposite party No. 2 and similarly, petitioner No. 6 is wife of petitioner No. 3 and the aforesaid material facts were suppressed by the Opposite party No. 2 in his complaint petition. It is further contended by him that as a matter of fact, prior to the filing of the aforesaid complaint case, petitioner No. 1 had filed a case u/S 498A of the Indian Penal Code against the Opposite party No. 2 as well as his other family members and after filing of the aforesaid complaint case by petitioner No. 1, the Opposite party No. 2 started filing Criminal cases one after another. It is further contended by him that father of the Opposite party No. 2 is a practicing advocate at the Civil Court, Munger and taking the advantage of his legal practice, he got filed the present case as well as some other cases against the petitioners. It is further contended by him that the petitioners are residents of district-Jamui which is situated near about 80 kilomertres away from district-Munger and it is unbelievable that petitioners could come to Munger to commit such type of offence and, therefore, the story as propounded by the Opposite party No. 2, is full of absurdity. 5. It is further contended by him that the petitioners are residents of district-Jamui which is situated near about 80 kilomertres away from district-Munger and it is unbelievable that petitioners could come to Munger to commit such type of offence and, therefore, the story as propounded by the Opposite party No. 2, is full of absurdity. 5. Learned counsel appearing for Opposite party No. 2 supported the impugned order and pointed out that Opposite party No. 2 filed Divorce Suit against the petitioner No. 1 and after filing of the Divorce Suit, the petitioner No. 1 filed Criminal Case u/S 498A of the Indian Penal Code against the Opposite party No. 2 and after that, she as well as other accused came to Munger and committed the alleged crime. It is further contended by him that earlier a police case was registered against the petitioners and in the said police case, cognizance was taken against which, petitioners came before this court but this court affirmed the order of the cognizance. It is further contended by him that the learned Magistrate, having conducted an inquiry u/S 202 of the Cr. P.C. passed the impugned order and, therefore, there is no ground for this court to interfere with the impugned order, at least, at this stage. 6. Having heard the contentions of both the parties, I have gone through the record. 7. It is an admitted position that the petitioner No. 1 is legally wedded wife of Opposite party No. 2 and matrimonial dispute is going on between the parties and furthermore, both parties have filed cases against each other much prior to filing of the present complaint case. It is also an admitted position that petitioners are residents of district-Jamui which is situated near about 80 kilometres away from district-Munger and, therefore, it appears absurd that petitioners would come to Munger and commit the alleged offence. In my view, it is a glaring example of malicious prosecution. 8. No doubt, learned Judicial Magistrate, having conducted an inquiry u/S 202 of the Cr. P.C., passed the impugned order but the issuance of summons or warrant in casual manner is a very serious matter which affects the liberty of a person. In my view, it is a glaring example of malicious prosecution. 8. No doubt, learned Judicial Magistrate, having conducted an inquiry u/S 202 of the Cr. P.C., passed the impugned order but the issuance of summons or warrant in casual manner is a very serious matter which affects the liberty of a person. It appears to me that the learned Judicial Magistrate misled because the Opposite party No. 2 had suppressed the material facts in his complaint petition and had the Opposite party No. 2 disclosed in his complaint petition about his relation with petitioners as well as about the litigations which were going on between the parties, the view of the learned Magistrate would have certainly been different. 9. In view of the aforesaid discussions, I am of the opinion that continuance of the prosecution of the petitioners in the present case, is nothing but only an abuse of the process of the court and, therefore, this quashing petition is liable to be allowed on admission stage itself. 10. On the basis of aforesaid discussions, this quashing petition is allowed and accordingly, the impugned order dated 16-03-2009 passed by Sri Shivchand, J.M. Ist Class, Munger in Complaint Case No. 1175 C of 2008 is, hereby, quashed. 11. In the abovesaid manner, this petition stands disposed of on admission stage itself.