JUDGMENT 1. Heard Sri Sunil Kumar Singh, learned counsel for the petitioner and Sri Shyam Bihari Singh, learned Addl. Public Prosecutor. Despite the fact that notice was validly served on complainant/Opp.Party no.2 once at the admission stage and secondly at the stage of hearing, even then Opp.Party no.2 has preferred not to appear. 2. The sole petitioner, who at the relevant time was a Veterinary Doctor , has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 01.10.2009 passed by the learned Sub Divisional Judicial Magistrate, Naugachia, District-Bhagalpur in Complaint Case No.190 of 2009. By the said order, the learned Magistrate has taken cognizance of offence under Sections 427 and 429 of the Indian Penal Code. 3. Short fact of the case is that on 05.07.2008, the complainant/Opp.Party no.2 filed a complaint in the court of the learned Addl. Chief Judicial Magistrate, Naugachia, which was registered as Complaint Case No.396 of 2008 for the offence under Section 269, 270, 271, 429 and 511/34 of the Indian Penal Code disclosing therein that on 07.04.2008, the petitioner in the capacity of Veterinary Doctor had operated a Jersey cow of the complainant due to the ailment in one of the legs of the said cow. During operation, the petitioner had taken Rs.1500/- as operation charge and Rs.700/- was taken for medicine. It was alleged that though the petitioner was a government doctor, he had conducted operation in drunken position. At the time of operation, he was heavily drunk and due to said reason, the operation was not conducted properly and successfully. Despite repeated request, the petitioner did not attend the ailing cow at post operation stage. It was alleged that once the complainant was abused and assaulted by the petitioner. The complaint petition, which was filed by the complainant, was referred to the police under Section 156(3) of the Code of Criminal Procedure for registering F.I.R. and investigating the case and, as such, an F.I.R. vide Bihpur P.S. Case No.250 of 2008 was registered on 01.08.2008 against the petitioner for the offence under Sections 427 and 429 of the Indian Penal Code. While investigation was going on, the complainant apprehended that no fair investigation will be done by the police and, as such, the complainant had filed a protest petition in the court of the learned Addl. While investigation was going on, the complainant apprehended that no fair investigation will be done by the police and, as such, the complainant had filed a protest petition in the court of the learned Addl. Chief Judicial Magistrate. The police after conducting thorough investigation found the case untrue and, as such, final report was submitted on 17.12.2008 as mistake of fact. The learned Magistrate after receipt of final report heard learned counsel for the complainant. Final Report was accepted by the learned Sub Divisional Judicial Magistrate on 18.03.2009 and the protest petition, which was filed earlier, was treated as complaint petition. Thereafter, during enquiry altogether seven witnesses were produced to prove the complaint case and finally by the impugned order i.e. order dated 01.10.2009 the learned Sub Divisional Judicial Magistrate took cognizance of offence, which has been assailed in the present petition. 4. Sri Sunil Kumar Singh, learned counsel for the petitioner, while assailing the order of cognizance, submits that though in the complaint petition, it was alleged that the petitioner had conducted operation on the cow of the complainant in drunken state, neither in his statement, which was recorded on oath, nor in the statement of any of the witnesses, who were examined during enquiry, this fact has come that that petitioner, while conducting operation on the cow, was in drunken state. He further submits that the witnesses as well as the complaint have stated that operation was not conducted by the petitioner in proper way and due to his negligence, the cow of the complainant subsequently died. It was further submitted that though as per the complaint petition, operation was conducted on 07.04.2008, the cow was fit and even on the date of filing of complaint petition, the cow of the complainant had not died. The first complaint petition was filed on 05.07.2008, which was referred to police for registering the F.I.R., whereas the cow of the complainant died on 31.07.2008. He further submits that during investigation, postmortem examination report was also obtained by the Investigating Officer, which suggested that the death of the cow had occurred due to diarrhoea. The first complaint petition was filed on 05.07.2008, which was referred to police for registering the F.I.R., whereas the cow of the complainant died on 31.07.2008. He further submits that during investigation, postmortem examination report was also obtained by the Investigating Officer, which suggested that the death of the cow had occurred due to diarrhoea. He further submits that the prosecution was fit to be rejected on the sole ground that in the complaint case i.e. Complaint Case no.396 of 2008, in respect of which an F.I.R. as Bihpur P.S. Case no.250 of 2008 was registered, the complainant had asserted that at the time of operation on the cow, the petitioner had taken Rs.1500 as operation charge and Rs.700/- for medicine, whereas in the protest petition the complainant had taken complete contradictory stand and he has asserted that the petitioner had taken Rs.15,000/- for conducting operation besides Rs.700/- as cost of medicines. It was submitted that the petitioner in the capacity of Animal Husbandry Doctor in good faith on the request of the complainant had conducted operation. His intention was never to cause any damage to the cattle of the complainant. If for the time being , it is assumed, though denied, that the cow died due to operation conducted by the petitioner, no criminal liability can be fastened upon the petitioner since the intention of the petitioner was to cure the cow of the complainant on his request and, as such, in any event , the learned Magistrate was not required to take notice of complaint and complainant’s case was liable to be rejected out rightly, whereas in a mechanical manner , the learned Magistrate has passed order of cognizance, which is under challenge before this Court. 5. The learned Addl. Public Prosecutor, though, has supported the order of cognizance, he was not in a position to point out any material to show that the petitioner was directly involved in the alleged offence. 6. In the present case, on 09.12.2010, while issuing notice to Opp.Party no.2, this Court had directed for staying the further proceeding of Complaint Case No.190 of 2009 pending in the court of learned Sub Divisional Judicial Magistrate, Naugachia, District-Bhagalpur. Thereafter, though notice was validly served on the complainant/Opp.Party no.2, the complainant/Opp. Party no.2 did not appear. On 24.07.2012 the matter was again heard and admitted for hearing. Thereafter, though notice was validly served on the complainant/Opp.Party no.2, the complainant/Opp. Party no.2 did not appear. On 24.07.2012 the matter was again heard and admitted for hearing. This Court summoned lower court record and also directed for issuance of notice to the complainant/OPP.Party no.2 in hearing matter. Again notice was validly served but the complainant preferred not to appear. 7. Besides hearing learned counsel for the petitioner and learned Addl. Public Prosecutor, I have also examined the materials available on record. Contradiction in the case of the complainant is evident from the fact that in the complaint petition, which was earlier filed vide Complaint Case No.396 of 2008 and subsequently referred to the police for its investigation, there was specific assertion that the petitioner had taken Rs.1500/- as operation charge, whereas in the protest petition, he has tried to develop the case and the complainant has asserted that the petitioner had taken Rs.15,000/- besides charge of medicine. In the complaint petition, the statement was made that at the time of operation, the petitioner was in drunken state, whereas in the statement on oath of the complainant, no such assertion was made. He had only said that due to laches on the part of the petitioner in conducting operation, he lost his cow. Similar stand was taken by other witnesses, who have been examined during enquiry. None of the witnesses have alleged regarding allegation of drunken state of the petitioner at the time of operation. They all had said that the operation was done by the petitioner and subsequently cow died. Only on the ground that after operation the cow of the complainant died at belated stage cannot be a ground for application of offences either under Section 427 or 429 of the Indian Penal Code. While discharging duty in a good faith as Animal Husbandry Doctor, the petitioner had operated the cow of the complainant and there is nothing on record that the petitioner had committed any mischief. Moreover, the first complaint, which had followed registration of F.I.R. i.e. Bihpur P.S. Case No.250 of 2008 was found untrue during investigation by the statutory investigating agency and final report was submitted as untrue by the police. 8. In view of the materials available on record, the Court is of the opinion that the learned Magistrate has committed error in passing the impugned order of cognizance. 8. In view of the materials available on record, the Court is of the opinion that the learned Magistrate has committed error in passing the impugned order of cognizance. The Court is of the opinion that on such material allowing the prosecution of the petitioner will amount to allowing abuse of the process of the court. The Court is satisfied that it was a clear-cut case of abuse of the process of the court, which needs interference by this Court, while exercising even power under Section 482 of the Code of Criminal Procedure, which is to be exercised in exceptional cases. It is a fit case in which this power is required to be exercised. 9. Accordingly, order of cognizance dated 01.10.2009 passed by the learned Sub Divisional Judicial Magistrate, Naugachia, Bhagalpur as well as entire proceeding in Complaint Case no. 190 of 2009 is hereby set aside. The petition stands allowed.