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2012 DIGILAW 401 (PAT)

Shyama Nand Jha v. State of Bihar

2012-03-05

RAKESH KUMAR

body2012
ORDER Heard Sri Bimal Kumar, learned counsel for the petitioners, Sri Kumar Uday Pratap, learned Addl. Public Prosecutor and Sri Suresh Prasad Barnawal, learned counsel, who has appeared on behalf of Opp.Party no.2. 2. The petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of F.I.R. of Katihar Mufassil P.S. Case No.66 of 2008 dated 05.06.2008 registered for the offence under Sections 363, 365, 366A, 376, 420/34 of the Indian Penal Code and Section 3 (x) (xi) (xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (herein after referred to as the “SC/ST Act”). The petitioners have also prayed for quashing of entire criminal proceeding arising out of the aforesaid Katihar Mufassil P.S. Case No.66 of 2008. Of course, while filing the present petition, the petitioners have not brought on record any order of cognizance. In this case, earlier by order dated 13.07.2009 case diary was called for and the same has been received. 3. Learned counsel for the petitioner, while challenging the F.I.R. submits that for the same occurrence, two F.I.Rs cannot be lodged. It has also been argued that the present F.I.R., which has been lodged on the basis of complaint petition filed before the court below, has palpably been filed maliciously and to wreak vengeance against the petitioners. On the aforesaid two grounds, prayer has been made for quashing of F.I.R. and without order of cognizance for quashing of entire proceeding. Learned counsel for the petitioners in support of his argument has relied upon a decision of the Hon’ble Apex Court reported in AIR 2001(SC) 2637 (T.T. Antony Vs. State of Kerala & Ors.). He submits that the Apex Court has held that for the same occurrence, two F.I.Rs cannot be lodged. He has further referred to a Judgment reported in 2006 (3) PLJR 610 (Lalit Kumar Singh & Ors Vs. State of Bihar & Anr.). He submits that earlier a case was instituted against son of petitioners, in which also though chargesheet was submitted, during the investigation itself, the victim girl had made statement that she had voluntarily solemnized marriage with the son of the petitioners .In that case, the petitioners were not accused but at subsequent stage, the present case was lodged for implicating the petitioners. Learned counsel for the petitioners has drawn attention to two F.I.Rs i.e. Annexure-1/ copy of Katihar Mufassil P.S. Case no.66 of 2008 registered for the offence under Sections 363,365,366A, 376 420/34 of the Indian Penal Code and Section 3(x)(xi) (xii) of the SC/ST Act and Annexure-2/ copy of F.I.R of Katihar P.S. Case No. 43 of 2008 registered for the offence under Section 366/34 of the Indian Penal Code. 4. Learned counsel for the State as well as Opp.Partyno.2 have vehemently opposed the prayer of the petitioners. It was submitted on their behalf that perusal of both the F.I.Rs makes it clear that both the cases were lodged for different transaction and not for the same occurrence. In the F.I.R. i.e. Katihar Mufassil P. S. Case no.43 of 2008, the informant was Sanjay Yadav, son-in-law of the informant of the present case i.e. Katihar Mufassil P.S. Case no.66 of 2008. In Katihar Mufassil P. S.Case no.43 of 2008, it was categorically stated that while the informant was going with his wife after vidagiri, she was forcibly kidnapped by son of the petitioners of the present case and for that F.I.R. was lodged, in which after investigation, police submitted chargesheet and the learned Magistrate has already taken cognizance of the offence. In the present case, fact stated in the F.I.R. makes it clear that the present case has got no connection with the occurrence, which took place in Katihar Mufassil P.S. Case no.43 of 2008. In the present case, there is allegation of offence under Section 376 and other allied Sections of the Indian Penal Code. 5. Besides hearing learned counsel for the parties, I have perused the materials available on record. I have also perused the case diary. After perusal of the case diary, it is evident that the Investigating Officer after collecting sufficient materials had already submitted chargesheet vide Chargesheet no. 78 of 2008 dated 31.08.2008 for the offence under Sections 376,341,342, 448, 420, 323, 504/34 of the Indian Penal Code and Section 3 (x)(xi) (xii) of the SC/ST Act. After going through the materials available on record as well as both the F.I.Rs, the Court is satisfied that both the cases are related to two distinct occurrences and, as such, it cannot be said that for the same occurrence, two F.I.Rs were lodged . After going through the materials available on record as well as both the F.I.Rs, the Court is satisfied that both the cases are related to two distinct occurrences and, as such, it cannot be said that for the same occurrence, two F.I.Rs were lodged . Accordingly, the decisions, upon which learned counsel for the petitioners has relied, have got no application in the facts and circumstances of the present case. So far the ground of malicious or mala fide against prosecution is concerned, it has already been held long back that in a criminal case, malice has got secondary importance and the Court has to see only as to whether offence is made out or not. On ground of malice only, the prosecution cannot be set aside. Moreover, in the present case immediately after lodging the F.I.R., the petitioners have approached this Court and, as such, no relief can be granted to the petitioners. Accordingly, the petition stands dismissed. ?