The State Of Bihar v. Md. Parwez Khan & Ors.

the complaint cum-FIR summarily it has been stated that there was a dispute with regard to payment of wages. As per the complaint 2 Patna High Court Cr.Misc. No.5215 of 2011 (5) dt.05-07-2012 petition they were the labourers working under the contractship of accused-petitioner no.1 Parwej Khan and Umesh Yadav was his clerk, who used to look after the work. As the complainant and others were paid Rs.70/ per day, they were demanding that they should be paid as per the rate fixed by the Government of Bihar, they are required to be paid higher rate but the contractor was not ready to pay the same. It also appears that on the day of occurrence, the complainant along with other labourers was insisting for payment and said that if they were not paid wages at enhanced rate they would approach the authorities, like the Superintendent of Police and the Collector whereupon the situation turned to be bad as accused petitioner no.1 directed accused No.2 to expel the complainant and had rebuked in abusive language having taken his caste name. It has further been stated that the accused with the help of other goonda elements had assaulted the complainant and also abused him This was witnessed by large number of persons and upon their intervention, life of the complainant was saved. The aforesaid complaint cum- FIR was investigated by the Police and Police, after investigation, submitted Final Form. Being not satisfied with the investigation of Police the complainant filed protest petition, on evidence and other materials, the court below has taken cognizance by the 3 Patna High Court Cr.Misc. No.5215 of 2011 (5) dt.05-07-2012 impugned order under the aforesaid Sections. Counsel for the petitioner argued the following points. The first point that has been raised is that it is nothing but a malicious prosecution, as this case has been filed in retaliation to Chhoradano P.S.Case No.51 of 2007 filed by Umesh Yadav, accused No.2. He has further said that an application dated 1st July 2007 was filed before the S.P. vide Annexure-4 bringing to the notice of Police that Sonu Mukhiya is demanding Rangdari and having criminal antecedents. The aforesaid complaint (Annexure-4) was filed prior to filing of the present case. Counsel for the petitioner further raised a point that there was delay in lodging the complaint as the date of occurrence is 24th August 2007 and the complaint has been filed on 30th August 2007 and the same was sent to Police which registered the case on 10th October 2007. There is no explanation for the delay in filing the complaint petition. Another point that has been raised is that the final form was submitted by Police stating that the case is untrue. In the protest petition four witnesses were examined and the statement made by them are contradictory to each other and in support of his submission relied on the judgment reported in 2009(2) PLJR 471 (Narendra Singh vs. State of Bihar. There is no material fact 4 Patna High Court Cr.Misc. No.5215 of 2011 (5) dt.05-07-2012 to show that the occurrence had taken place in public view and at last the order is cryptic. Counsel for the complainant has drawn my attention to Para-11 of the complaint –cum- FIR and submitted that from the facts it is clear that the complainant was not only there but other persons were also there to witness the occurrence. He has also argued that in taking cognizance, only prima facie case has to be seen. So far point no.1 is concerned, it is very easy to assert mala fide but it is difficult to prove the same. The ground that has been raised by the petitioner is of filing of earlier case i.e. Chhoradano P.S.Case no. 51 of 2007 and Annexure-4 that has been filed by the petitioner stating the fact that Sonu Mukhiya, who has not filed this complaint case demanded ransom and having bad antecedent. There is no detail of Chhoradano P.S.Case No. 51 of 2007 as neither the FIR has been annexed nor details has been provided. It is very relevant to say that Police has not registered any case in pursuance of Annexure-4. In the application (Annexure-4) it has been stated that Sonu Mukhiya has criminal antecedent but without any detail. There is no allegation aginst the complainant. Merely because the workers were demanding money as per the wages fixed by the Government of Bihar and the 5 Patna High Court Cr.Misc. No.5215 of 2011 (5) dt.05-07-2012 application (Annexure-4) was pending from before the authority, the present Annexure-4 cannot be a ground to prove that the complaint cum-FIR was lodged maliciously as there is no allegation against the complainant but against Sonu Mukhiya. On analysis of aforesaid facts, the present case cannot be categorized as malicious prosecution. So far another ground with regard to pubic view is concerned, from Para-11 it appears that all the incidents had taken place in presence of public who witnessed the whole incident. The Hon’ble Supreme Court in a recent judgment in the case of Bhushan Kumar (2012)2 SCC 422 has held that while taking cognizance, it should appear that the court has applied his judicial mind and it is not required that the court should go for full fledged trial. From the impugned order, it appears that the court below has applied his judicial mind and has taken cognizance in accordance with law. This Court does not find any merit in this case. It is accordingly dismissed. Jay/- (Shivaji Pandey, J)