Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.26349 of 2011 ====================================================== Sanjay Kumar Pandey @ Sanjay Pandey Son Of Late Kurlidhar Pandey Resident Of Man Sharda Kunj Apartment, Flat No. - 303, New Patliputra Colony, Patna. Versus 1. The State Of Bihar. 2. Shahida Khanan Wife Of Islam Khan Resident Of Village - Bhawanandpur Pathantoli, @ Zizaffar, P.S. - Birpur, District - Begusarai. .... .... Petitioner/s .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 04/ 27-11-2013 The present application has been filed for quashing the entire criminal proceeding and order dated 20.03.2008 passed by learned Judicial Magistrate, Ist Class, Begusarai in Complaint Case No. 1526 of 2004, whereby process has been directed to be issued after cognizance being taken for the offences punishable under Sections 448 and 379/34 of the Indian Penal Code. It is alleged by the complainant that on 27.08.2003 at 2.00 P.M., the nephew of the complainant Raju Khan was sitting at the door, in the meantime, the petitioner being Sub-Inspector of Police along with other Sub-Inspector Wakil Manjhi entered into the house of the complainant chasing Raju Khan. Police personnel took away gold and silver jewellery worth Rs.30,000/- along with Raju Khan. It is further alleged that someone assaulted the son of
Legal Reasoning
Patna High Court Cr.Misc. No.26349 of 2011 (4) dt.27-11-2011 2/5 the complainant on 20.06.2003 when the complainant went to lodge FIR, it was not registered and in retaliation to the protest made by the complainant, the Police Officer took away the articles and Raju from the house. It is submitted by learned counsel for the petitioner that for the occurrence of 27.08.2003 the complaint was filed on 20.09.2004 and the order of cognizance was passed on 20.03.2008. During the course of enquiry under Section 202 of the Cr.P.C., a report was called for from Officer-in-charge, Birpur Police, which suggests that Sanha No. 573 dated 27.08.2003 reflects that at the relevant time the petitioner being the Police Officer had gone to Jehanabad Court to attend a court proceeding in some matter. The present case has been lodged in retaliation to the fact that the Police Sub-Inspector Wakil Manjhi during investigation of Barauni P.S. Case No. 77 of 2003 chased Raju Khan, who entered into the house of the complainant when he was apprehended.
Legal Reasoning
It is submitted by learned counsel for the complainant that she was pursuing her remedy before the National Human Rights Commission and other authorities and hence, delay was caused in lodging of the complaint and on finding a prima facie case the order of cognizance has been passed. Patna High Court Cr.Misc. No.26349 of 2011 (4) dt.27-11-2011 3/5 Considering the rival submissions of the parties, the lodging of the complaint after more than one year of the occurrence, substantially clouds the bonafide of the accusation. The filing of Barauni P.S. Case No. 77 of 2003 and chase of the nephew of the complainant by the police officers when he entered into the house of the complainant is admitted by the complainant in the complaint petition. Hence, prima facie it appears that as a retaliatory measure the present case has been maliciously lodged and such prosecution deserves to be quashed in view of the ratio laid down in the case of State of Haryana Vs. Bhajan, reported in 1992 Supp (1) Supreme Court Cases 335. Paragraph no. 102 reads as follows: “In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though 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. 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 facie constitute any offence or make out a case against the accused. Patna High Court Cr.Misc. No.26349 of 2011 (4) dt.27-11-2011 4/5 in 2. Where the allegations the First Information Report and other materials, if any, accompanying the F. I. R. 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. Where, the allegations in the F.I.R. 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 F.I.R. 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 instituted with an ulterior motive for maliciously wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” The present case comes within more than one category, as enumerated in the Bhajan Lal’s case (supra) and allowing the prosecution will amount to abuse the process of the Court. Hence to secure ends of justice the impugned order cannot be sustained. Patna High Court Cr.Misc. No.26349 of 2011 (4) dt.27-11-2011 5/5 Accordingly, the order of cognizance dated 20.03.2008 and entire criminal proceeding of Complaint Case No. 1526 of 2004 are hereby quashed and this application is allowed. (Dinesh Kumar Singh, J) DKS/-