====================================================== 1. Rajsheela Singh, W/o of Late B. B. Singh, R/o 11, Dropadi Apartment v. 1. The State of Bihar 2. Sunita
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 28751 of 2012 ====================================================== 1. Rajsheela Singh, W/o of Late B. B. Singh, R/o 11, Dropadi Apartment, P.O. & P.S. – Shastri Nagar, District – Patna at present 3K/40, Bariyatu Housing Colony, Ranchi, Jharkhand 2. Pankaj Kumar @ Pankaj Kumar Singh, S/o Late B. B. Singh, R/o 11, Dropadi Apartment, P.O. & P.S. – Shastri Nagar, District – Patna at present posted as HOD, Institute of Dental & Medical Sciences, Bariely, Uttar Pradesh .... .... Petitioner/s Versus 1. The State of Bihar 2. Sunita Singh, W/O Harinandan Singh, R/O Village – Chalsingara, P.S. Raghopur, District – Vaishali, at present Mohalla – Nagmatia Road, P.S. – Civil Lines, District Gaya .... .... Opposite Party/s ====================================================== For the Petitioners :- Mr. Prasant Sinha, Advocate Mr. Nagesh Pratab Singh, Advocate For the O.P. No. 2 :- Mr. Pramod Kumar, Advocate For the State :- Mr. Aditya Nr. Singh-I, A.P.P. ==================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 4 04-07-2013 Heard. This is a petition for quashing the order dated 24.02.2010 passed by Smt. Anandita Singh, Judicial Magistrate-1st Class, Gaya in Complaint Case No. 1594 of 2009 whereby learned court below took cognizance against the petitioners for the offence under Sections 323, 341, 380, 354 and 386 of the Indian Penal Code as also for quashing the entire criminal proceeding. The prosecution case as alleged by the opposite party no. 2 Sunita Singh is that she purchased a house which is under the tenancy of accused nos. 1 and 2 and her husband was compounder of accused no. 1 who is a doctor and after purchase of the house, her husband was removed from the work of compounder and then the opposite party no. 2 and her husband requested the accused nos. 1 and 2 to vacate the house
Legal Reasoning
Patna High Court Cr.Misc. No.28751 of 2012 (4) dt.04-07-2013 2 but the house was not vacated and ultimately she filed a suit bearing Eviction Suit No. 22 of 2006. It is further alleged that in between 04.08.2009 to 13.08.2009 accused no. 1 who is a lady doctor along with accused no. 2 who is the son of accused no. 1 entered into the house of the opposite party no. 2, abused and started looting the house-hold articles. It is also alleged that the accused no. 1 after abuse instigated accused no. 2 to rape the opposite party no. 2 and on the command of accused no. 1, accused no. 2 threw her on the ground and started undressing her and in the meantime the sons of the opposite party no. 2 came and saved her. It is further alleged that the accused persons assaulted her by slaps and fists and there was demand of Rs.2,00,000/- as rangdari for vacating the house. On the complaint, the opposite party no. 2 and the witnesses were examined on solemn affirmation and after examining the witnesses cognizance has been taken against accused nos. 1 and 2 under Sections 323, 341, 380, 354 and 386 of the Indian Penal Code. Learned counsel for the petitioners has challenged the order taking cognizance on the ground that the allegation made in the complaint are patently absurd and inherently improbable and the case has been lodged with malicious intention to wreak vengeance to spit on the face of the accused persons. It has further been contended that prior to institution of this case, the opposite party no. 2 and her husband have filed an eviction suit which has already been admitted in the complaint itself. It has further been alleged that after lodging the suit the opposite party no. 2 tried to harass the petitioners. The petitioner no. 1 filed a criminal case on 04.08.2009 being Gaya Sadar Civil Lines P.S. Case No. Patna High Court Cr.Misc. No.28751 of 2012 (4) dt.04-07-2013 3 239 of 2009. It has further been contended that in view of the First Information Report, the husband of the opposite party no. 2 was arrested and after arrest this false complaint has been lodged against the petitioners. It has further been contended that prior to this case also, three cases were filed by the petitioners bearing Gaya Sadar Civil Lines P.S. Case No. 290 of 2006, Gaya Sadar P.S. Case No. 69 of 2008 and Civil Line Gaya P.S. Case No. 342 of 2010 alleging theft of articles worth Rs.1,00,000/- and the opposite party no. 2 filed this case in retaliation.
Legal Reasoning
Learned counsel for the opposite party no. 2, however, contended that the allegation made in the complaint itself makes out an offence and the witnesses have supported the prosecution case during the inquiry and hence, order taking cognizance is sustainable. However, taking into consideration the respective submissions of the parties, the question for consideration is whether the order taking cognizance on the allegations and materials available on record is required to be interfered or allowing it to continue is an abuse of process of the court. However, taking into consideration the allegation in the complaint, it is evident that the petitioner no. 1 who is doctor and mother of petitioner no. 2 along with petitioner no. 2 came and abused the opposite party no. 2. Petitioner no. 1 asked her son to rape the opposite party no. 2. It is further alleged that the opposite party no. 2 had purchased the house in which clinic of petitioners stands for which an eviction suit was filed which is pending. Further allegation is that on the command of petitioner no. 1, the petitioner no. 2 attempted to rape and Patna High Court Cr.Misc. No.28751 of 2012 (4) dt.04-07-2013 4 torn the clothes of opposite party no. 2 but on the intervention of two sons of the opposite party no. 2, she could be saved. It is further alleged that they came and looted the articles. However, taking into consideration the allegation on the face value of the complaint, the allegation appears to be patently absurd and inherently improbable that a mother who is a doctor will command her son who is also a doctor to rape the opposite party no. 2 the landlady in whose house the petitioners are the tenant. It is admitted that the opposite party no. 2 is a landlady and the petitioners are the doctors having their clinic on rent in the premises and an eviction suit is going on between the parties. It is asserted that the opposite party no. 2 and her husband after filing suit tried to evict the petitioners by force and even used to vex the petitioners to oust by force and several cases filed against the opposite party no. 2 and her husband. The First Information Report of those cases has been annexed. It is asserted that on the case filed by the petitioners for theft of articles of the clinic in which the husband was taken in custody and due to vengeance this case has been filed. The First Information Report shows the filing of the case by the petitioners which are annexed in the case and those First Information Report suggests that case has been lodged by the petitioners against the opposite party no. 2 and her husband. It is asserted that in the background that an eviction suit filed by the opposite party no. 2 followed with First Information Report lodged by the petitioners, in this background, it is asserted that the case has been lodged mala fidely. However, it is true that the assertion made by the petitioners may be the defence of the petitioners and the defence of the petitioners cannot be Patna High Court Cr.Misc. No.28751 of 2012 (4) dt.04-07-2013 5 seen at the stage of taking cognizance but in exceptional cases in special fact and circumstance this Court while exercising jurisdiction under Section 482 of the Cr.P.C. in the interest of justice to prevent an abuse of process of the court within the parameters laid down in Bhajan Lal’s Case reported in 1992 Suppl. (1) SCC 335, may look into material or document of unimpeachable character of sterling quality and this view has been expressed in the case of State of Orissa Vs. Debendra Nath Padhi reported in 2005(1) SCC 568. However, in view of the legal position, the document filed by the petitioners in the First Information Report, filed by the opposite party no. 2 are the documents to suggest that earlier criminal cases had been filed by the petitioners after filing of eviction suit by the opposite party no. 2 in connection with the premises in which the clinic of the petitioners situated. The admitted position remains that the opposite party no. 2 has filed eviction suit. The plaint of the suit filed by opposite party no. 2 and First Information Report has been filed which are documents of unimpeachable character to show that the petitioners are tenant in the premises they are doctor having their clinic in the premises where the occurrence alleged. Hence, in this background when the allegation made appears apparently, inherently improbable and apparently absurd. No mother will ask her son to rape and the son will proceed against the opposite party no. 2 to rape her in full view of the mother and to loot the house- hold property. It is absurd to say that petitioners being doctors looted the property of opposite party no. 2 in whose house they themselves are tenants as clinic is going on. Hence, in this background the fact that Patna High Court Cr.Misc. No.28751 of 2012 (4) dt.04-07-2013 6 litigation between the parties are going on, it is apparent that the allegation has been made mala fidely with ill motive to harass the petitioners to wreak vengeance to spit on the face of the petitioners to put pressure to oust them from the rented premises. Hence, the case of the petitioners is well covered under category 5 and 7 of Bhajan Lal’s Case. I am conscious of the legal position that the power under Section 482 Cr.P.C. is required to be exercised sparingly in exceptional circumstance and this Court while exercising the jurisdiction of the inherent power be slow to disturb the inquiry made by the Magistrate. However, on the face of record, it appears that the petitioners cannot be called upon to answer criminal liability, and allowing the prosecution to continue on such frivolous complaint is an abuse of process of the court. It appears that the trial court took cognizance mechanically without due application of mind. Hence, taking into consideration the facts and circumstances of the case, order taking cognizance and entire criminal proceeding to continue is an abuse of process of the court. Hence, the petition is allowed. Kundan/- (Gopal Prasad, J)