Nakul Prasad Singh v. State Of Bihar

A.P.P. for the State and learned counsel appearing for the opposite party no. 2. The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the „Code‟) seeks quashing of the order dated 07.11.2012 passed by the Sub-Divisional Judicial Magistrate, Nalanda, Bihar Sharif in Complaint Case No. 1117 (C) of 2012 by which cognizance has been taken under Sections 341/380/448 of the Indian Penal Code Patna High Court Cr.Misc. No.4196 of 2013 (4) dt.27-09-2013 against the petitioners and summons have been issued for their appearance. Learned counsel for the petitioners submits that though a counter affidavit has been filed on behalf of the complainant but there is no denial of the fact that the petitioner no. 1 is in government service and the petitioner no. 3 is his minor son, who at the relevant time was studying in Class-IX, and also that the parties are neighbours. As per the complaint, the petitioners are said to have entered the house of the complainant and at gunpoint looted articles and jewellery worth Rs. 60,000/- and also clothes belonging to the complainant and her family members. Learned counsel for the petitioners submits that the present complaint case, which has been instituted on 03.09.2012, is totally false and concocted in view of the fact that the petitioner no. 1 has lodged Harnaut P.S. Case No. 198 of 2012 on

30.08.2012 against the husband of the complainant and others under Sections 341/323/379/504/34 of the Indian Penal Code. It is submitted that as per the said F.I.R., on 30.08.2012 at about 1:00 P.M., due to the petitioner no. 1 objecting to construction of an Anganbadi Kendra, he was assaulted by the husband of the complainant and others and the accused had also taken away Patna High Court Cr.Misc. No.4196 of 2013 (4) dt.27-09-2013 jewellery worn by the daughter of the petitioner no. 1. It is submitted that in the complaint, the allegation relates to the night of 29th /30th August, 2012, that is, the night just previous to the incident for which the petitioner no. 1 has lodged F.I.R. against the husband of the complainant and others. Learned counsel submits that the parties are agnates and the petitioner no. 1 is holding the post of Work Inspector in the Minor Irrigation Department and at the relevant time was posted at Mithapur, Patna. It is further submitted that the petitioner no. 2 is the nephew of the petitioner no. 1 and is employed in a private job whereas the petitioner no. 3, was a student of Class-IX at the relevant time was aged about 15 years. Learned counsel submits that besides the allegations being absurd and unbelievable and also highly improbable, from the complaint itself it can be demonstrated that the same is only by way of a counter case to save the husband of the complainant and others from the adverse impact of Harnaut P.S. Case No. 198 of

2012. For such proposition, learned counsel refers to the statement made in the middle of the complaint petition at internal page-3 where it is stated that “while running away, the accused had received certain injuries”. Learned counsel submits that when the allegation is that the petitioners had looted away the articles at about 1:00-1:30 A.M. in the night and had run away with the Patna High Court Cr.Misc. No.4196 of 2013 (4) dt.27-09-2013 looted articles, the complainant could not have known as to whether while running away, the accused had received any injury. Thus, it is submitted that the statement clearly is an attempt to give an explanation as to how the petitioner no. 1 had received injuries on 30th August, 2012 by showing that in the previous night he had received injuries while running away after looting the articles from the house of the complainant. Learned counsel submits that though, in view of the statements made by the witnesses and the allegation in the complaint, a case can be said to be made out for lodging of criminal proceeding but taking into account the totality of the situation as well as the background of there being a police case against the husband of the complainant and others and the fact that the petitioner no.

1 is a government servant and the petitioner no. 3 is minor and were also neighbours of the complainant, the present complaint case is clearly an abuse of the process of the Court and has been lodged to wreak vengeance with mala fide intention for oblique reasons. The Court may take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a proceeding to continue and while doing so also quash the proceeding where in the opinion of the Court chances of an ultimate conviction is bleak even though it may be at a Patna High Court Cr.Misc. No.4196 of 2013 (4) dt.27-09-2013 preliminary stage. For such proposition, learned counsel has relied upon the decision of the Hon‟ble Supreme Court in the case of Madhavrao J. Scindia v. Sambhajirao C. Angre reported in (1988) 1 SCC 692 as well as the decisions of this Court in the case of Dr.

Ashok Kumar Jha vs. State of Bihar reported in 2012 (3) PLJR 91 and in the case of Chandra Shekhar Jha vs. State of Bihar reported in 2013 (2) PLJR 571. Learned A.P.P. for the State fairly submits that from what has been brought on record and has gone unrebutted in the counter affidavit filed by the opposite party no. 2, it is apparent that the criminal case does not inspire confidence and seems to be for settling private grudge and wreaking vengeance. Learned counsel appearing for the opposite party no. 2 opposes the application and has relied on the averments made in the counter affidavit filed by him. He submits that the occurrence did take place and the delay due to which the complaint was lodged on 03.09.2012 is explained in the complaint itself inasmuch as the complainant had gone to the police station in the morning of the occurrence and had also recorded her statement and was assured of a police case being lodged but when she went to check up with regard to the progress of the investigation on

02.09.2012, she was told to approach the Court due to which the Patna High Court Cr.Misc. No.4196 of 2013 (4) dt.27-09-2013 complaint case has been lodged on 03.09.2012. Learned counsel submits that the order taking cognizance is in accordance with law since the Court concerned has only to see whether a prima facie case is made out and trial warranted. It is submitted that in the present case, the materials before the Court were adequate to take cognizance and cannot be assailed. Upon considering the rival contentions, this Court finds substance in the submissions of learned counsel for the petitioners and learned A.P.P. for the State. Though, strictly speaking and from a purely technical point of view, the order taking cognizance may not be faulted, but in exercise of its inherent powers, this Court may go into the aspect as to whether the criminal proceeding and prosecution itself would amount to an abuse of the process of the Court and thus requires to be quashed.

In the present case also, this Court finds that the petitioner no. 1 having filed a police case prior in time against the husband of the complainant and others alleging assault and also theft of articles, the nature of allegation in the said F.I.R. compared to the nature of the allegation in the present complaint, clearly discloses that the same has been instituted maliciously with ulterior motive for wreaking vengeance apart from setting up a defence for the accused in the police case lodged by the petitioner no. 1. Further, Patna High Court Cr.Misc. No.4196 of 2013 (4) dt.27-09-2013 this Court also finds that the allegations are highly improbable where no prudent person can believe the incident and clearly it is to spite the petitioners due to a private and personal grudge. Further, this Court is conscious that at the very threshold a criminal proceeding should not be thrown out but in view of the well settled principles laid down by the Hon‟ble Supreme Court with regard to quashing of F.I.R. or complaint, this Court feels that present situation is covered under the illustrations given by the Hon‟ble Supreme Court in the case of State of Haryana v.