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2012 DIGILAW 831 (PAT)

Vikash Kumar v. State of Bihar

2012-06-20

HEMANT KUMAR SRIVASTAVA

body2012
JUDGMENT 1. This petition under Section 482 of the Cr.P.C. has been filed on behalf of the petitioners for quashing the order dated 18/19.07.2011 passed by Mrs. Niharika, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 3275 C of 2010 corresponding to Trial No. 2056 of 2010 by which and whereunder the learned Judicial Magistrate having found prima facie case under Sections 323 and 380 of the Indian Penal Code, ordered to issue summons against the petitioners to face trial in the above stated case. 2. The brief fact, which lies to file this quashing petition, is that Opposite Party No. 2, namely, Mrs. Ritu Kumari filed aforementioned Complaint Case No. 3275 C of 2010 against the petitioners and three others in the court of Chief Judicial Magistrate, Patna alleging therein that on 28.11.2010 at about 09:00 P.M. petitioners no. 1 and 2 came to her house and started abusing her and when she objected, petitioners and other accused started assaulting her mercilessly knowing it very well that she was carrying pregnancy at the relevant time. She further alleged that accused, Bablu took out pistol from his pocket whereas accused, Gajendra Prasad Singh took Rs. 5300/- from her Almirah and accused, Rinki Devi snatched gold chain worth nearly Rs. 40,000/- and similarly, petitioner no. 3, namely, Amrita Singh snatched Jhumka worth nearly Rs. 8,000/-. The Opposite Party No. 2 raised alarm which attracted the witnesses, who saved her life. After the aforesaid incident, she went to Phulwarisharif Police Station to lodge the first information report but police did not register the case in collusion with the petitioners and other accused. 3. Learned Chief Judicial Magistrate took the cognizance of the offences and transferred the record to the court of Mrs. Niharika, Judicial Magistrate, 1st Class, Patna for enquiry and trial and after that the above stated Mrs. Niharika, Judicial Magistrate, 1st Class, Patna conducted an enquiry under Section 202 of the Cr.P.C. and having found prima facie case under Sections 323 and 380 of the Indian Penal Code, ordered to issue summons against the petitioners and other accused passing impugned order dated 18/19.07.2011 against which this quashing petition has been preferred. 4. Niharika, Judicial Magistrate, 1st Class, Patna conducted an enquiry under Section 202 of the Cr.P.C. and having found prima facie case under Sections 323 and 380 of the Indian Penal Code, ordered to issue summons against the petitioners and other accused passing impugned order dated 18/19.07.2011 against which this quashing petition has been preferred. 4. I have already heard learned counsel for the petitioners as well as learned Additional Public Prosecutor for the State but none appeared on behalf of the Opposite Party No. 2 at the time of hearing even on repeated call. 5. Learned counsel for the petitioners submitted that the above stated complaint case has been filed by Opposite Party No. 2 with mala fide intention and as a matter of fact, much prior to filing of the above stated case, the mother-in-law of the Opposite Party No. 2 had filed Complaint Case No. 3053 C of 2009 against the husband of Opposite Party No. 2 as well as others as the aforesaid accused had got fraudulently mutated their name in place of mother of Opposite Party No. 2 showing her as dead person and again, the mother-in-law of Opposite Party No. 2 lodged Phulwarisharif P.S. Case No. 04 of 2012 on 02.01.2012 against the husband of Opposite Party No. 2 as well as others. It was pointed out on behalf of the petitioners that petitioner no. 3 is daughter of Chintamani Devi who happens to be mother-in-law of Opposite Party No. 2. It was also pointed out on behalf of the petitioners that husband of Opposite Party No. 2 as well as his other brothers got mutated their name in respect of lands of aforesaid Chintamani Devi showing her dead and after that she was ousted by the aforesaid persons from the house. It was further pointed out by him that after the aforesaid incident, the above stated Chintamani Devi filed Complaint Case No. 3053 of 2009 and took shelter in the house of petitioner no. 3 who was made witness in Complaint Case No. 3053 of 2009 and that is the reason of filing of the present false case. It was further pointed out by him that husband of aforesaid Chintamani Devi had also filed a petition before the Circle Officer, Phulwarisharif, Patna mentioning this fact that some persons had got mutated their name in respect of his lands showing him as dead. It was further pointed out by him that husband of aforesaid Chintamani Devi had also filed a petition before the Circle Officer, Phulwarisharif, Patna mentioning this fact that some persons had got mutated their name in respect of his lands showing him as dead. It was also contended on behalf of the petitioners that so far as petitioners no. 1 and 2 are concerned, admittedly, petitioner no. 2 is husband of petitioner no. 3 whereas petitioner no. 1 is elder brother of petitioner no. 2. 6. Learned counsel appearing for the petitioners further submitted that the above stated complaint case has been filed by Opposite Party No. 2 on account of land dispute with an intention to put pressure upon the petitioners so that they should part themselves from Chintamani Devi who happens to be mother of petitioner no. 3. 7. Learned counsel appearing for the petitioners cited a decision reported in (2009) 8 Supreme Court Cases 751 in which it has been held that criminal courts should ensure that criminal proceedings are not misused for setting scores or pressurizing parties to settle civil dispute. 8. On contrary, learned Additional Public Prosecutor supported the impugned order arguing that it is not a proper stage to disturb the findings of the learned Judicial Magistrate. It was further contended by him that no doubt, there is series of litigation between the parties on account of land dispute but only due to reason of land dispute, it would not be proper for this court to quash the proceeding of the present case. 9. Having heard the above stated contentions of the parties, I have gone through the record. It is an admitted position that petitioner no. 3 is married Nanad (sister-in-law) of Opposite Party No. 2 whereas petitioner no. 2 is husband of petitioner no. 3 and petitioner no. 1 is elder brother of petitioner no. 2. It is also an admitted position that prior to filing of the present case, the mother of petitioner no. 3 filed complaint case bearing Complaint Case No. 3053 C of 2009 against her sons including the husband of Opposite Party No. 2. It is also an admitted position that mother of petitioner no. 3 levelled allegation against her sons that they got mutated their name fraudulently in respect of her lands and again after filing of the present complaint case, the mother of petitioner no. It is also an admitted position that mother of petitioner no. 3 levelled allegation against her sons that they got mutated their name fraudulently in respect of her lands and again after filing of the present complaint case, the mother of petitioner no. 3 lodged Phulwarisharif P.S. Case No. 04 of 2012 against her sons and, therefore, the aforesaid facts clearly go to show that there was dispute between the parties in respect of land which is said to be stood in the name of mother of petitioner no. 3 as well as mother-in-law of Opposite Party No. 2. 10. In State of Haryana and Ors. Vs. Bhajan Lal and Ors reported in 1992 Supp (1) Supreme Court Cases 335, the Apex Court of this country categorised the cases in which the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Apex Court also held in the aforesaid decision that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. The Apex Court laid down following illustrations wherein the inherent powers under Section 482 of the Cr.P.C. can be exercised:- 1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima face constitute any offence or make out a case against the accused. 2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 11. Admittedly, the aforesaid list is not exhaustive and the Court can exercise its inherent power in other circumstances also if the circumstances demand the interference of this court. In the present case, it is stand of the petitioners that Opposite Party No. 2 has brought the case with mala fide intention to put pressure upon them and also to settle her score and personal grudge as the petitioners had helped the mother-in-law of Opposite Party No. 2 in fighting her legal battle against her sons. 12. In the above stated case of State of Haryana Vs. Bhajan Lal (Supra), it has already been held by the Apex Court of this country that if a prosecution is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, the court has got ample power to quash the aforesaid prosecution. In my view, in the preset case, learned counsel for the petitioners has succeeded to show this fact that the present prosecution of the petitioners is a mala fide prosecution with an ulterior motive for wreaking vengeance. 13. In my view, in the preset case, learned counsel for the petitioners has succeeded to show this fact that the present prosecution of the petitioners is a mala fide prosecution with an ulterior motive for wreaking vengeance. 13. The present complaint petition discloses that all the accused persons including the petitioners were residing with Opposite Party No. 2 in their joint house and it is an admitted position that almost all the accused persons including the petitioners and Opposite Party No. 2 are related with each other and, therefore, the story of assault and snatching money and gold appears to be absurd and, therefore, I am of the opinion that the present case is squarely covered by the decision of State of Haryana Vs. Bhajan Lal (Supra). 14. In view of the aforesaid discussions, I am of the opinion that continuance of Complaint Case No. 3275 C of 2010 is nothing but an abuse of process of the law and the same must be quashed by this Court by exercising its inherent power vested under Section 482 of the Cr.P.C. 15. On the basis of aforesaid discussions, this petition is allowed and the impugned order dated 18/19.07.2011 passed in complaint Case No. 3275 C of 2010 corresponding to Trial No. 2056 of 2010 pending in the court of Mrs. Niharika, Judicial Magistrate, 1st Class, Patna is, hereby, quashed. 16. In the aforesaid manner, this petition stands disposed of.