Patna High Court
Pashupati Kumar @ Pashupati Kumar Paras vs State Of Bihar And Anr on 13 May, 2019
Equivalent citations: AIRONLINE 2019 PAT 493
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.9927 of 2015
Arising Out of PS. Case No.-459 Year-2010 Thana- KHAGARIA District- Khagaria
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Pashupati Kumar @ Pashupati Kumar Paras S/o Late Jamun Das Resident of
village - Belahi Sharbani, P.S. Alauli, Distt. - Khagaria
... ... Petitioner/s
Versus
1. The State of Bihar
2. The C.O. (Circle Officer), Khagaria, Distt- Khagaria
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Din Bandhu Mishra, Advocate
For the State : Mr. Jharkhandi Upadhyay with
Mr. Ram Bachan Singh APP
======================================================
CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date : 13-05-2019
Heard learned counsel for the petitioner and learned APP
for the State.
2. The petitioner has moved the Court under Section 482
of the Code of Criminal Procedure, 1973 (hereinafter referred to as
the 'Code') for the following relief:
"That, this is a application for quashing the
cognizance order dated 05/03/2011 which is taken by
the C.J.M, Khagaria in Khagaria (Chitragupta Nagar
P.S. Case No-459/10, G.R.N 1625/10 which is pending
before Sri Anjani Kumar gond, Magistrate Khagaria."
3. The allegation against the petitioner in the complaint
by the Anchal Adhikari (Circle Officer), Khagaria to the Officer
Incharge, Chitragupta Nagar, Khagaria P.S., is that while filling up
the nomination form for contesting from 148, Alauli Vidhan Sabha
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seat, on 12.10.2010 at 1:10 P.M, the crowd of his supporters and
slogan raising was violative of the Model Code of Conduct and
Section 144 of the Code.
4. Learned counsel for the petitioner submitted that an
order under Section 144 of the Code can be passed only by the Sub
Divisional Magistrate and not a person below that rank and, thus,
the law requires that the complaint against the violators has to be
filed either by that officer, i.e., Sub Divisional Magistrate or his
superior but a person subordinate to the authority which had issued
the prohibitory order cannot maintain such complaint. For such
proposition, learned counsel relied upon a decision of a Bench of
this Court in Surendra Prasad Yadav v. State of Bihar reported
as 2007 (4) PLJR 533, the relevant being at paragraph no. 7.
Learned counsel submitted that even otherwise, the violation of a
prohibitory order for making out offence under Section 188 of the
Indian Penal Code, disobedience must either cause or have
tendency to cause obstruction, annoyance or injury and there has
to be factual proof thereof. Learned counsel relied upon a
judgment of a Bench of this Court in Pratik Sinha vs. State of
Bihar reported as 2016 (4) PLJR 274, the relevant being at
paragraphs no. 39 to 41. It was submitted that in the instant case,
the Court had held that there was no allegation that disobedience
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of prohibitory order had tendency to cause obstruction, annoyance
or injury and risk of obstruction, annoyance or injury to any person
lawfully employed as also that without a written complaint of the
public servant concerned, no prosecution can be launched.
5. Learned APP, in view of the decisions relied upon by
learned counsel for the petitioner, was not in a position to
controvert the legal and factual position.
6. Having considered the facts and circumstances of the
case and submissions of learned counsel for the parties, the Court
finds that a case for interference has been made out.
7. As has rightly been submitted by learned counsel for
the petitioner, on the short legal point of lack of competency of the
Anchal Adhikari to lodge the case, in view of the decisions of the
Court in Surendra Prasad Yadav (supra) and Pratik Sinha
(supra), the present complaint against the petitioner itself was not
maintainable in the eyes of law.
8. Another glaring legal infirmity in the prosecution
lodged against the petitioner is the fact that provisions of Section
195(1) of the Code have not been adhered to and, thus, the
investigation conducted by the police is also without jurisdiction.
9. A co-ordinate Bench of this Court in Parveen
Amanullah vs. The State of Bihar reported as 2017 (3) PLJR
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101, by judgment dated 19.10.2016, under similar circumstances
has quashed the order by which cognizance has been taken under
Section 188 of the Indian Penal Code. The Court deems it apt to
quote paragraphs no. 17 to 40 of the said judgment which read as
under:
"17. At this stage, it would also be pertinent to
take note of Section 195(1) of the Cr.P.C., which bars the court to
take cognizance of the offence punishable under Section 188 of
the IPC or abatement of criminal conspiracy to commit such an
offence unless there is a complaint in writing by a public servant
concerned or public servant to whom he is administratively
subordinate for contempt of his lawful order. It reads as under :
"195. Prosecution for contempt of lawful authority
of public servants, for offences against public
justice and for offences relating to documents given
in evidence -
(1) No Court shall take cognizance--
(a) (i) of any offence punishable under sections 172
to 188 (both inclusive)of the Indian Penal Code (45
of 1860), or
(ii) of any abetment of, attempt to commit, such
offence, or
(iii) of any criminal conspiracy to commit, such
offence, except on the complaint in writing of the
public servant concerned or of some other public
servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the
following section of the Indian Penal Code (45 of
1860), namely, sections 193 to 196 (both inclusive),
199, 200, 205 to 211 (both inclusive) and 228, when
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such offence is alleged to have been committed in, or
in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or
punishable under section 471, section 475 or section
476, of the said Code, when such offence is alleged to
have been committed in respect of a document
produced or given in evidence in a proceeding in any
Court, or
(iii) of any criminal conspiracy to commit, or attempt
to commit, or the abetment of, any offence specified
in sub-clause (i) or sub-clause (ii), except on the
complaint in writing of that Court, or of some other
Court to which that Court is subordinate."
18. From a close reading of sub-section (1) of Section 195 of
the Cr.P.C., it would be abundantly clear that the criminal courts are
mandated not to take cognizance of any offence under Sections 172 to
188 of the IPC except on the "complaint" in writing of the public
servant or of some other public servant to whom he is
administratively subordinate.
19. The word "complaint" used in Section 195(1)(a)(iii) of the
Cr.P.C. has been defined under Section 2(d) of the Cr.P.C., which
reads as under :
"2(d) "complaint" means any allegation made orally
or in writing to a Magistrate, with a view to his
taking action under this Code, that some person,
whether known or unknown, has committed an
offence, but does not include a police report."
20. Thus, from a reading of the definition of the word
"Complaint", it would be crystal clear that the complaint does not
include a police report.
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21. In M.S. Ahlawat Vs. State of of Haryana & Anr. [(2000) 1
SCC 278], the Supreme Court considered the provisions prescribed
under Section 195 of the Cr.P.C. at length and observed in paragraph
5 as under :
"5. ...Provisions of Section 195 CrPC are mandatory
and no court has jurisdiction to take cognizance of
any of the offences mentioned therein unless there is
a complaint in writing as required under that
section."
22. One may also refer to some other judgments with regard
to scope of Section 195 of the Cr.P.C.
23. In Daulat Ram v. State of Punjab [AIR 1962 SC 1206],
the Supreme Court considered the nature of the provisions prescribed
under Section 195 of the Cr.P.C.. In the said case, the facts of the case
was that cognizance had been taken on the basis of police report
submitted under Section 173(2) of the Cr.P.C. by the Magistrate and
the appellant therein had been tried and convicted though the public
servant concerned, the Tehsildar had not filed any complaint. While
deciding the appeal, the Supreme Court held in paras 4 and 5 as
under:
"4. ...The cognizance of the case was therefore
wrongly assumed by the court without the complaint
in writing of the public servant, namely, the Tahsildar
in this case. The trial was thus without jurisdiction ab
initio and the conviction cannot be maintained.
5. The appeal is, therefore, allowed and the
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conviction of the appellant and the sentence passed
on him are set aside."
24. In the State of U.P. Vs. Mata Bhikh & Ors. (Supra), the
Supreme Court observed in paras 6 and 7 as under:
"6. The object of this section is to protect persons from
being vexatiously prosecuted upon inadequate materials
or insufficient grounds by person actuated by malice or
ill- will or frivolity of disposition at the instance of
private individuals for the offences specified therein. The
provisions of this section, no doubt, are mandatory and
the Court has no jurisdiction to take cognizance of any of
the offences mentioned therein unless there is a complaint
in writing of 'the public servant concerned' as required by
the section without which the trial under Section 188 of
the Indian Penal Code becomes void ab initio. See
Daulat Ram v. State of Punjab (AIR 1962 SC 1206)'. To
say in other words a written complaint by a public
servant concerned is sine qua non to initiate a criminal
proceeding under Section 188 of the IPC against those
who, with the knowledge that an order has been
promulgated by a public servant directing either 'to
abstain from a certain act, or to take certain order, with
certain property in his possession or under his
management' disobey that order. Nonetheless, when the
court in its discretion is disinclined to prosecute the
wrongdoers, no private complainant can be allowed to
initiate any criminal proceeding in his individual
capacity as it would be clear from the reading of the
section itself which is to the effect that no court can
take cognizance of any offence punishable under
Sections 172 to 188 of the IPC except on the written
complaint of 'the public servant concerned' or of some
other public servant to whom he (the public servant who
promulgated that order) is administratively subordinate.
7. A cursory reading of Section 195(1)(a) makes out
that in case a public servant concerned who has
promulgated an order which has not been obeyed or
which has been disobeyed, does not prefer to give a
complaint or refuses to give a complaint then it is
open to the superior public servant to whom the
officer who initially passed the order is administratively
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subordinate to prefer a complaint in respect of the
disobedience of the order promulgated by his
subordinate. The word 'subordinate' means
administratively subordinate i.e. some other public
servant who is his official superior and under whose
administrative control he works."
25. In C. Muniappan & Ors. (Supra), the Supreme Court
observed in para 33 as under :
"33. Thus, in view of the above, the law can be
summarized to the effect that there must be a
complaint by the pubic servant whose lawful order
has not been complied with. The complaint must be
in writing. The provisions of Section 195 Cr.PC are
mandatory. Non-compliance of it would vitiate the
prosecution and all other consequential orders. The
Court cannot assume the cognizance of the case
without such complaint. In the absence of such a
complaint, the trial and conviction will be void ab
initio being without jurisdiction."
26. In Pratik Sinha Vs. State of Bihar & Ors. [2016 (4)
PLJR 274], this Court has held in paras 39 to 41 as under :
"39. As noted above, in the present case, the
prohibitory order was passed by the Municipal
Commissioner, PMC in Vigilance Case No. 203-A of
2013, whereas the FIR has been instituted on the
basis of a written report submitted by one Kedar
Prasad, Tax Collector, Bankipore Circle of the
PMC, who is neither the public servant, who had
passed the prohibitory order nor the successor-in-
office to the public servant nor a public servant to
whom the public servant, who had passed the
prohibitory order is administratively subordinate.
The Municipal Commissioner, PMC is not a
subordinate officer to aforesaid Kedar Prasad.
40. In that view of the matter, no prosecution could
have been launched against the petitioner under
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Section 188 of the IPC on the basis of a written
report submitted by the informant of the present
case.
41. Furthermore, no FIR could have been registered
by the police for an offence punishable under Section
188 of the IPC. The legislative intention appears to
be clear from the language of Section 195(1) of the
CrPC, which clearly prescribes that where an
"offence" is committed under Section 188 of the
IPC, it would be obligatory that the public servant
before whom such an "offence" is committed, should
file a complaint before the jurisdictional Magistrate
either orally or in writing. Hence, registration of an
FIR for an offence under Section 188 IPC is not
permitted in law."
27. In an unreported judgment in Dharmesh Prasad Verma
Vs. The State of Bihar (Cr.Misc. No. 41702 of 2015- disposed of on
th
10 May, 2016), this Court held in para 17 as under:
"17. The provision prescribed under Section 195 of
the CrPC has been carved out as an exception to the
general rule contained under Section 190 of the
CrPC that any person can set the law into motion by
making a complaint, as it prohibits the Court from
taking cognizance of certain offences until and unless
a complaint has been made by some particular
authority or person. The legislative intention appears
to be clear from the language of Section 195 of the
CrPC which clearly prescribes that where an offence
is committed under Section 188 IPC, it would be
obligatory that the public servant before whom such
an offence is committed, should file a complaint
before the jurisdictional Magistrate either orally or
in writing. Hence, it would not be within the domain
of the police to register a case for an offence alleged
under Section 188 of the IPC and investigate the
same, as registration of an FIR for an offence under
Section 188 IPC is not permitted by the CrPC."
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28. In yet another unreported judgment in Anirudh Prasad
Yadav @ Sadhu Yadav Vs. The State of Bihar (Cr.Misc. No. 33259
th
of 2013 - disposed of on 4 August, 2016), this Court in paras 10 to
12 held as under :
"10. Section 171-G IPC penalizes a person who
makes/publishes any statement, which he
knows/believes to be false, relating to the personal
character or conduct of any candidate, with intent to
affect the results of an election. Apparently, there is
no such allegation that the accused persons including
the petitioner made any statement, which they knew
to be false relating to the personal character and
conduct of any candidate with intent to affect the
result of an election. In that view of the matter, the
ingredients of the offence punishable under Section
171-G of the IPC are clearly not attracted in the
present case.
11. Similarly, section 171-H of the IPC penalizes a
person who incurs/authorizes any expenses in
connection with the purpose of promoting or
procuring the election of any candidate, without the
general or special authority in writing of such
candidate. There is no such allegation in the present
case and this Court is of the opinion that none of the
ingredients of the offence punishable under Section
171-H of the IPC are attracted in the present case.
12. Further, Section 188 of the IPC penalizes
disobedience to an order duly promulgated by a
public servant, its prerequisite being:-
(a) Lawful order promulgated by a public servant
empowered to promulgate it;
(b) Knowledge of the order;
(c) Disobedience of the order; and
(d) Result that is likely to follow such disobedience
i.e. obstruction, annoyance, injury or risk of the
same to a person lawfully employed or danger
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to human health, life or safety or riot affray."
29. This Court is mindful of the fact that the inherent
powers under Section 482 of the Cr.P.C. to quash a criminal
proceeding are to be exercised sparingly and with great
circumspection. It has to be exercised only in exceptional cases. For
exercising powers under Section 482 of the Cr.P.C. this Court cannot
enter into any finding of facts. At the same time, Section 482 of the
Cr.P.C. casts a duty upon the High Court to remove injustice in
appropriate cases.
30. Section 482 of the Cr.P.C. reads as under :
"482. Saving of inherent power of High Court.
Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make
such orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends
of justice."
31. From a reading of the above provision, it would be
apparent that the inherent powers of the High Court are not limited to
any provision of the Cr.P.C. and in appropriate cases this Court may
make such orders as may be necessary to give effect to any order
under this Code or to prevent abuse of the process of the Court or
otherwise to secure the ends of justice.
32. In R.P. Kapoor Vs. State of Punjab [AIR 1960 SC
866], the Supreme Court laid down certain provisions under which
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the inherent powers under Section 482 of the Cr.P.C. are to be
exercised. They are -
(1) Where institution/continuance of criminal
proceedings against an accused may amount to an
abuse of the process of the court or that the quashing
of the impugned proceeding would secure the ends of
justice;
(2) Where it manifestly appears that there is a legal
bar against the institution or continuance of the
proceeding, e.g. want of sanction;
(3) Where the allegations in the First Information
Report or complaint taken at their face value and
accepted in their entirety do not constitute the offence
alleged;
(4) Where the allegations constitute an offence
alleged, but there is either no legal evidence adduced
or evidence adduced clearly or manifestly fails to
prove the charge."
33. In the State of Karnataka Vs. L. Muniswamy & Ors.
[(1977) 2 SCC 699], the Supreme Court held as under :
"In the exercise of this wholesome power, the High
Court is entitled to quash a proceeding if it comes to
the conclusion that allowing the proceeding to
continue would be an abuse of the process of the
Court or that the; ends of justice require that the
proceeding ought to be quashed. The saving of the
High Court's inherent powers, both in civil and
criminal matters, is designed to. achieve a salutary
public purpose which is that a court proceeding
ought not to be permitted to degenerate into weapon
of harassment or persecution. In a criminal case, the
veiled object behind a lame prosecution, the very
nature of the material on which the structure of the
prosecution rests and the like would justify the High
Court in quashing the proceeding in the interest of
justice. The ends of justice are higher than the, ends
of mere law though justice has got to be administered
according to laws made by the legislature. The
compelling necessity for making these observations is
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that without a proper realization of the object and
purpose of the provision which seeks to save the
inherent powers of the High Court to do justice
between the State and its subjects, it would be
impossible to appreciate the width and contours of
that salient jurisdiction."
34. In Madhaorao J. Scindhia Vs. Sambhaji Rao
[AIR 1988 SC 709], the Supreme Court held as under :
"The legal position is well-settled that when a
prosecution at the initial stage is asked to be
quashed, the test to be applied by the court is as to
whether the uncontroverted allegations as made
prima facie establish the offence. It is also for the
court to 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 prosecution to continue. This is so on the
basis that the court cannot be utilized for any oblique
purpose and where in the opinion of the court
chances of an ultimate conviction is bleak and,
therefore, no useful purpose is likely to be served by
allowing a criminal prosecution to continue, the
court may while taking into consideration the special
facts of a case also quash the proceeding even though
it may be at a preliminary stage.
35. In the State of Haryana & Others Vs. Bhajan Lal and
Others [1992 Supp (1) SCC 335], the Supreme Court has dealt in
detail the provisions of Section 482 of the Cr.P.C. and the power of
the High Court to quash the criminal proceedings or the FIR. The
Supreme Court summarized the legal position by laying down the
following guidelines to be followed by the High Court in exercise of
their inherent powers to quash the criminal proceeding :
"102. In the backdrop of the interpretation of the
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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 extra-ordinary 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
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 FIR or
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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."
36. Having seen the ambit and scope of Section 195(1) of
the Cr.P.C. and the ratio laid down by the Supreme Court and this
Court in the decisions, referred to hereinabove, this Court is of the
opinion that the investigating authorities acted without jurisdiction in
registering the FIR under Section 188 of the IPC on the basis of a
letter written to them by the informant in the capacity of Revenue
Karamchari. The investigation conducted by the police was also
without jurisdiction. Sub-section (1) of Section 195 of the Cr.P.C.
creates a further bar in so far as it also restricts the Magistrate from
accepting written complaint from any person other than the public
servant who issued the concerned order or of some other public
servant to whom he is administratively subordinate.
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37. This Court is also of the view that the learned Magistrate
has also failed to apply his judicial mind to the facts and law involved
in the case while passing the impugned order. It is well settled that
taking of cognizance and summoning the accused in a criminal case
has a serious consequence on the liberty of the accused as pursuant to
such an order the accused is compelled to face trial of a criminal
offence.
38. The need for proper application of mind by the courts at
the stage of summoning has been highlighted by the Supreme Court
in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate
and Others[(1998) 5 SCC 749], in para 28 as under:-
"28. Summoning of an accused in a criminal case is
a serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect that
he has applied his mind to the facts of the case and
the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the
evidence both oral and documentary in support
thereof and would that be sufficient for the
complainant to succeed in bringing charge home to
the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary
evidence before summoning of the accused. The
Magistrate has to carefully scrutinize the evidence
brought on record and may even himself put
questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any
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offence is prima facie committed by all or any of the
accused."
39. Once again in Fakhruddin Ahmad Vs. State of
Uttaranchal and Another [(2008) 17 SCC 157], in para 17, the
Supreme Court held as under:-
"17. Nevertheless, it is well settled that before a
Magistrate can be said to have taken cognizance of
an offence, it is imperative that he must have taken
notice of the accusations and applied his mind to the
allegations made in the complaint or in the police
report or the information received from a source
other than a police report, as the case may be, and
the material filed therewith. It needs little emphasis
that it is only when the Magistrate applies his mind
and is satisfied that the allegations, if proved, would
constitute an offence and decides to initiate
proceedings against the alleged offender, that it can
be positively stated that he has taken cognizance of
the offence. Cognizance is in regard to the offence
and not the offender."
40. Regard being had to the facts and the law involved in the
present case and the ratio laid down by the Supreme Court in respect
of exercise of power under Section 482 of the Cr.P.C. in the
decisions, noted above, this Court is of the opinion that allowing the
prosecution to continue any more would be nothing but an abuse of
the process of the Court as apart from the fact that the complainant
was not authorized to institute a case under Section 188 of the IPC,
there was also an express legal bar against institution of FIR and
summoning of an accused on the basis of police report. Furthermore,
the allegations made in the FIR even if taken at their face value and
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accepted in their entirety, do not attract the ingredients of the offence
alleged."
10. In the aforesaid background, the application is allowed.
The entire criminal proceeding arising out of Khagaria (Chitragupta
Nagar) P.S. Case No. 459 of 2010, G.R. No. 1625 of 2010, pending
before the Court below at Khagaria, including the order dated
05.03.2011, by which cognizance has been taken, as far as it relates to the petitioner, stands quashed.
(Ahsanuddin Amanullah, J) Anjani/-
AFR/NAFR AFR U T