Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.45463 of 2010 ====================================================== 1. Shyam Asthana, 2. Sudhanshu Asthana, 3. Purnima Asthana alias Purnima Sinha, 4. Nutan Asthana alias Kumari Nutan Asthana, 5. Krishna Asthana 1. The State Of Bihar, 2. Sanjeev Kumar Sinha Versus .... .... Petitioner/s .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 5 01-11-2013 Heard learned counsel for the parties. The petitioners have prayed for quashing the order dated 13.9.2010 passed by the learned Judicial Magistrate, Sadar Motihari in Complaint Case no. 1444 of 2006 ( Tr. No. 1890 of 2010) whereby the application of the petitioner for discharge under section 245 of the Code of Criminal Procedure has been rejected. Complainant is the husband of petitioner no. 3, while petitioner nos. 1 and 5 are the parents of petitioner no.3 and petitioner nos. 2 and 4 are brother and sister of petitioner no. 3. The case of the complainant is that some reconciliation was going on in the house, when the accused persons made assault, snatched gold chain and Titan watch, for which Complaint Case no. 1444 of 2006 was filed on 11.8.2006.
Legal Reasoning
Patna High Court Cr.Misc. No.45463 of 2010 (5) dt.01-11-2013 2/6 It is submitted on behalf of the petitioners that when the petitioners came to know about the complaint being filed, they filed an application (Annexure 2) before the concerned magistrate on 29.9.2006 that since a case was earlier lodged by petitioner no. 3 on 28.6.2006 levelling accusations under sections 498A and 494 of the Indian Penal Code against the complainant, hence the present complaint was filed by the complainant in order to save his skin. In spite of the submission of aforesaid facts, learned court below mechanically took cognizance. The said order of cognizance was challenged before this court in Cr. Misc. No.
Decision
50169 of 2006 which was disposed of with a direction to raise all contentions at the appropriate stage. Thereafter, the petitioners filed an application for discharge under section 245 of the Code of Criminal Procedure on 16.1.2009 giving detailed background of filing case from petitioners side at an earlier point of time, including the relationship between the parties, which reflects the malicious intent with which the present complaint has been filed but the learned magistrate mechanically dismissed the application for discharge on the ground that witnesses examined under section 244 Cr.P.C. have supported the accusation. It is further submitted by the learned counsel for the petitioners that it is absolutely a malicious prosecution as the case Patna High Court Cr.Misc. No.45463 of 2010 (5) dt.01-11-2013 3/6 was lodged making accusations under sections 498A and 494 of the IPC by the petitioner no. 3 against the complainant on 28.6.2006 when the present complaint was filed on 11.8.2006 with a view to wreak vengeance on the petitioners but without considering the same, the application for discharge was rejected. It is submitted by the learned counsel for the complainant that in the case lodged by petitioner no. 3 against the complainant making accusation under sections 494 and 498A IPC though cognizance was taken, but the same was challenged before this court, when the cognizance order was quashed vide Cr. Misc. no. 36480 of 2010, against the other accused under sections 498A and 494 IPC, while prosecution only under section 494 IPC was allowed to continue against the present complainant, who is husband of petitioner no. 3. Considering the rival submissions of the parties, it is apparent that the case lodged by petitioner no. 3 against the complainant is earlier in point of time and therefore, it appears that maliciously the present complaint was lodged and this fact has not been considered by the learned court below while disposing of the application under section 245 Cr.P.C. In view of this court, the present complaint was filed as retaliatory measure to the case filed by the petitioner side to wreak Patna High Court Cr.Misc. No.45463 of 2010 (5) dt.01-11-2013 4/6 vengeance and in such a situation the prosecution can be quashed, as held in the case of State of Haryana Vs. Bhajan Lal 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. 2. Where the allegations in 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 Patna High Court Cr.Misc. No.45463 of 2010 (5) dt.01-11-2013 5/6 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 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.” Patna High Court Cr.Misc. No.45463 of 2010 (5) dt.01-11-2013 6/6 Hence, applying the principle, for quashing the criminal prosecution, as laid down in the State of Haryana Vs. Bhajan Lal (supra), this court comes to a conclusion that the present criminal prosecution is manifestly attended with malafide or the prosecution is maliciously instituted with an ulterior motive for wreaking vengenance on the petitioners with a view to spite them due to personal grudge, as petitioner no. 3 had filed a case at an earlier point of time against the complainant/O.P. No. 2, making accusation under sections 494 and 498A IPC. Accordingly, allowing the present prosecution to continue will be an abuse of the process of the court. Hence, to secure the ends of justice, the order dated 13.9.2010 passed in complaint case no. 1444 of 2006 passed by the learned Judicial Magistrate, Sadar, Motihari including the entire prosecution with regard to the petitioners is quashed. This application is, accordingly, allowed. (Dinesh Kumar Singh, J) Anil/-