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2012 DIGILAW 237 (PAT)

Sandeep Kumar Khandelwal v. State of Bihar

2012-02-08

RAJENDRA KUMAR MISHRA

body2012
JUDGMENT RAJENDRA KUMAR MISHRA, J. - The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 8.10.2001 passed in Complaint Case No.769 of 2001/Trial No.511 of 2001 by the court of Sri I.C. Chaturvedi, Judicial Magistrate, First Class, Gaya, summoning the accused-petitioners, under Section 204 of the Code of Criminal Procedure, on inquiry, finding prima facie case under Sections 427 and 436 read with Section 34 of the Indian Penal Code against them. A prayer has also been made to quash the entire proceedings arising out of the aforesaid complaint case against the accused-petitioners. 2. In brief, the case is that the opposite party no.2, Ram Raj Paswan, filed the Complaint Case No.769 of 2001 in the court of the Chief Judicial Magistrate, Gaya, alleging therein that on 12.8.2001, the accused-petitioners alongwith unknown armed with weapons came and asked him to vacate the house giving threatening for dire consequences in case of non vacating the same. When the protest was made, his house and the houses of the witnesses were burnt by them by sprinkling kerosene oil, as a result of which twenty hens, two she goats, grains and clothes burnt to ashes. It is further alleged that when one Vinod Kumar, son of Ganga Prasad of Mohalla-Janakpur, came and asked for paper regarding the vacation of the house saying that why the houses of Poor Harijan have been burnt then the accused-petitioners alongwith unknown also gave threatening to him to teach a lesson. 3. After filing of the aforesaid complaint petition by the opposite party no.2, on inquiry under Section 202 of the Code of Criminal Procedure, the court of Sri I.C. Chaturvedi, Judicial Magistrate, First Class, Gaya, summoned the accused-petitioners finding prima facie case under Sections 427 and 436 read with Section 34 of the Indian Penal Code. 4. 3. After filing of the aforesaid complaint petition by the opposite party no.2, on inquiry under Section 202 of the Code of Criminal Procedure, the court of Sri I.C. Chaturvedi, Judicial Magistrate, First Class, Gaya, summoned the accused-petitioners finding prima facie case under Sections 427 and 436 read with Section 34 of the Indian Penal Code. 4. Learned counsel appearing on behalf of the petitioners made submission that in fact, in Execution Case No.2 of 1994, arising out of Partition Suit No.3 of 1979, one Umesh Kumar Sharma, who was appointed as Pleader Commissioner, reached to inspect the spot on 12.8.2001, in that course, one Vinod Kumar, himself, set the huts of the labourers on fire but anyhow the fire was controlled by the police and the local people regarding which, on the basis of the written report of Umesh Kumar Sharma, the Pleader Commissioner, Muffasil P.S. Case No.95 of 2001 under Sections 436, 353, 337 and 120-B of the Indian Penal Code was instituted on 12.8.2001, which would appear from Annexure-‘2’ to this application. Later on, the police submitted the chargesheet in that case against Vinod Kumar, son of Ganga Prasad, resident of Muhalla-Janakpur, who faced trial in the case, numbered as Sessions Trial No.169 of 2005and lastly, convicted and sentenced vide judgment and order dated 26.12.2005 passed by the Additional Sessions Judge, Fast Track Court No.IV, Gaya, which would appear from Annexure-‘8’ to the supplementary affidavit filed on behalf of the petitioners. As such, the aforesaid Vinod Kumar, son of Ganga Prasad, got managed to file the aforesaid Complaint Case No.769 of 2001 by the opposite party no.2 against the accused-petitioners with oblique motive in counter blast of Muffasil P.S. Case No.95 of 2001. 5. From perusal of the complaint petition, it appears that there is allegation against the petitioners and unknown for setting the huts of the opposite party no.2 and others on fire on 12.8.2001 as a result of which 20 hens, 2 she goats, grains and clothes burnt to ashes. When one Vinod Kumar, son of Ganga Prasad of Muhalla-Janakpur, came and asked about the setting the huts on fire of Poor Harijans, then he was also threatened by the petitioners and unknown for dire consequences. When one Vinod Kumar, son of Ganga Prasad of Muhalla-Janakpur, came and asked about the setting the huts on fire of Poor Harijans, then he was also threatened by the petitioners and unknown for dire consequences. It also appears that regarding the alleged occurrence of 12.8.2001, the aforesaid Complaint Case No.769 of 2001 was filed by the opposite party no.2 in the court of the Chief Judicial Magistrate, Gaya, on 16.8.2001. Annexure-‘2’ to this application is the F.I.R. of Muffasil P.S. Case No.95 of 2001 registered under Sections 436, 353, 337 and 120-B of the Indian Penal Code against Vinod Kumar, son of Ganga Prasad of Muhalla-Janakpur, on 12.8.2001, regarding the occurrence as alleged in the Complaint Case No.769 of 2001, on the basis of the written report of Umesh Kumar Sharma, Pleader Commissioner, Civil Courts, Gaya. Annexure-‘8’ to the supplementary affidavit filed on behalf of the petitioners also goes to show that Vinod Kumar faced trial in Sessions Trial No.169 of 2005, arising out of Muffasil P.S. Case No.95 of 2001, and vide judgment and order dated 26.12.2005 passed by the Additional Sessions Judge, Fast Track Court No.IV, Gaya, he was convicted for the offences under Sections 435 and 353 of the Indian Penal Code and respectively sentenced to three years and one year with direction to run both the sentences concurrently. As such, the Complaint Case No.769 of 2001 appears to have been filed with oblique motive by the opposite party no.2 in counter blast of Muffasil P.S. Case No.95 of 2001. 6. Under the aforesaid facts and the circumstances, the impugned order dated 8.10.2001 passed in Complaint Case No.769 of 2001/Trial No.511 of 2001 by the court of Sri I.C. Chaturvedi, Judicial Magistrate, First Class, Gaya, as also the entire criminal proceeding arising out of the aforesaid complaint case, is hereby quashed and the application is allowed. Application allowed.