Rizwan Ashraf @ Md. Rizwan & Ors. vs State Of Bihar & Anr on 20 September, 2013

[Cites 18, Cited by 0]

Patna High Court - Orders

Rizwan Ashraf @ Md. Rizwan & Ors. vs State Of Bihar & Anr on 20 September, 2013

1. The three petitions are being heard together and disposed of by the common order. The three petitions i.e. Cr. Misc. No. 38325 of 2012, Cr. Misc. No. 38339 of 2012 and Cr. Misc. No. 40323 of 2012 are for quashing the order dated 03.03.2011 in Complaint Case No. 165 (C) of 2010, order dated 18.08.2010, in Complaint Case No. 168 (C) of 2010 and order dated 06.01.2012 passed in Complaint Case No. 378 (C) of 2008 respectively, passed by the Judicial Magistrate, 1st Class, Danapur, Patna, by which cognizance has been taken for offence under Sections 147, 452, 380, 427 and 504/34 of the Indian Penal Code, for offence under Sections 147, 148, 452, 427, 448 and 380/34 of Indian Penal Code as well as for offence under Sections 341, 342, 323, 504 and 379/34 of the Indian Penal Code respectively.

2. The prosecution case as alleged in the Complaint Case No. 165 (C) of 2010 that on 21. 02. 2010 at about 8 P.M. the complainant, Ravindra Kumar, son of Paras Rai got information that some criminals are breaking the cement shop of the complainant standing of Plot No. 362, Manpura, Saguna, P.S. Danapur. The complainant reach at the place of occurrence and show the accused persons named in the complaint six in number, namely, Md. Reyaz, Md. Jamaluddin, Md. Khursheed Zaman, Md. Badrul, Md. Osman and Md. Wasim along with 15 to 20 unknown persons are committing mischief and looting article. The complainant protested then accused persons abused and 3 threatened to kill. It is further alleged that accused persons armed with fire arms and so the complainant got frighten immediately informed the police station. It is further alleged that accused persons are intimidated the police and for that reason police station did not take any steps. The accused persons broke the shop of the complainant and cement kept in the shop to the tune of 153 bags cement, 12 quintal iron rod and other articles worth Rs. 1,00,000/- was taken away. It is further alleged that complainant got loss of Rs. 5,00,000/- for breaking the shop and since the police did not take any action so the complaint petition has been filed.

3. On the complaint, the complainant was examined on oath and after examination of complainant and witnesses, cognizance was taken for offence under Sections 147, 148 452, 380, 427 and 504/34 of Indian Penal Code and process was ordered to be issued against the accused persons.

4. In Complaint Case No. 168 (C) of 2010, the complainant, Kedar Rai, son of Sheo rattan Rai, has alleged that he has constructed a shop after purchase of the land Plot No. 362, Khata No. 35 at Mainpura, P.S. Danapur and north of that shop there is a room in which there was spade, Khanti and Jhawa and other articles were kept and there is another store room of Ashok Kumar. It is alleged that on 21. 02. 2010 at about 8 P.M. said store room of Ashok Kumar was being broken by the accused who are six in number along with 15 to 20 unknown persons came in 4 form of unlawful assembly and started breaking the store room of the shop keeper . The shop keeper informed the complainant. The complainant immediately rushed to the place of occurrence and protested then accused persons abused and taking out fire arms and threatened to kill and so the complainant out of fear went away. It is further alleged that accused persons broke the room and take away articles in the store room and looted the articles of the shop keeper causing loss of Rs. 3,000/- to the complainant and Rs. 10,000/- to the shop keeper. It is further alleged that for breaking the shop of the complainant there is loss of Rs. 4,75,000/- to the complainant. The complainant informed the Sub-Division Police Officer, but they did not take any action so the complaint petition is being filed.

5. On the complaint petition, after examination of complainant and witnesses, cognizance was taken for offence under Sections 147, 148, 452, 448, 380, 427 and 504/34 of the Indian Penal Code.

6. However, it is pertinent to mention that Complaint Case No. 165 (C) of 2010 and Complaint Case No. 168 (C) of 2010 have the same date and time of occurrence. However, the place of occurrence of Plot No. 362. Further accused persons in Complaint Case No. 165 (C) of 2010 and Complaint Case No. 168(C) of 2010 are same and accused persons are same in six in number and 15 to 20 unknown persons.

7. The prosecution case in the Complaint Case No. 378 5 (C) of 2008, the complainant, namely, Raj Ballabh Kumar, son of Paras Rai, alleging therein that on 18. 05. 2008, at about 4 P.M. while the complainant, Raj Ballabh Kumar son of Paras Rai was returning from Mela and reached at the place of occurrence Bari Haveli Saguna, then accused no. 1 Rizwan Ashraf @ Md. Rizwan commanded to catch hold of the complainant and on his order other accused persons, namely, Md. Jamaluddin, Dr. Md. Khursheed and Md. Badrul Hassan restrained the complainant abused and assaulted by slaps and fists and tear his shirt and took away of Rs. 150/- from his pocket as well as Rs.20,000/- from his purse kept for purchase of a cow at the point of pistol. It is further alleged that they also snatched golden chain from his neck and snatched Titan watch from his hand. It is further alleged that at the time of occurrence, witnesses collected who have seen the occurrence, but the complainant could not protest out of fear of pistol in the hands of the accused persons. It is further alleged that complainant went to the inform the police station, but since Officer-in-Charge of police station was busy in election work and other police officer did not lodge the F.I.R. so the complainant filed the complaint.

8. On the complaint petition, after examination of complainant and witnesses, cognizance was taken for offence under Sections 323 and 379 of the Indian Penal Code.

9. Learned counsel for the petitioners however contends that petitioner no. 1 of Cr. Misc. No. 40323 of 2012 arising out of 6 Complaint Case No. 378 (C) of 2008, Md. Rizwan Ashraf is aged about 55 years is a Civil Engineer and is son of defendant no. 47, Nagama Khatoon in Title Suit No. 204 of 2002. The petitioner no. 1 of Cr. Misc. No. 38325 of 2012 arising out of Complaint Case No. 165 (C) of 2010 and petitioner no. 1 in Cr. Misc. No. 38339 of 2012 arising out of Complaint Case No. 168 (C) of 2010 is the same person, namely, Md. Reyaz aged about 60 years is an Advocate, and petitioner no. 2 Md. Jamaluddin in Cr. Misc. No. 38339 of 2012 is also petitioner no. 2 in Cr. Misc. no. 38325 of 2012 arising out of Complaint Case No. 165 (C) of 2010 is also same person aged about 50 years as well as petitioner no. 3 in Cr.Misc. No. 40323 of 2012 arising out of Complaint Case No. 378 (C) of 2008 aged about 58 years is also petitioner no. 3 in Cr Misc. No. 38339 of 2012 as also petitioner no. 3 in Cr. Misc. no. 38325 of 2012 and petitioner no. 2 in Cr. Misc. No. 40323 of 2012 as also petitioner no. 4 in Cr. Misc. no. 38339 of 2012 is Dr. Md.Badrul Hasan aged about 76 years old and also M.B.B.S. doctor and died on 01. 09. 2012, though, has been mentioned that after death of petitioner no. 4 his name has been deleted in Cr. Misc. No. 38339 of 2012 and in Cr. Misc. No. 38325 of 2012 original petitioner no. 5 Md. Amanuddin son of Late Moinuiddin, though, have been made petitioner no. 5, but after deleting the name of Dr. Md. Badrul Hasan, numbered as petitioner no. 4. The petitioner nos. 1, 2, 3 and 4 of Cr. Misc. No. 38325 of 2012 and Cr. Misc. No. 38339 of 2012 are defendants no. 41, 19, 11 and 21 7 respectively in Title Suit No. 204 of 2002 and said Title Suit No. 204 of 2002 has been filed by one Md. Equebal through his attorney, Paras Rai. The said Title Suit No. 204 of 2002 has been filed for declaration of title over Plot No. 362 of Khata No. 35 situated at Mohalla- Manpura Saguna, P.S. Danapur and restraining the opposite party for interfering the possession of the defendants.

10. The complainants of Complaint Case No. 165 (C) of 2010 and Complaint Case No. 168 (C) of 2010 are son and brother of Paras Rai filed their complaint on behalf of Md. Equebal, through his attorney Paras Rai and complainant Ravindra Kumar, son of Paras Rai and Kedar Rai, brother of Paras Rai claim to have their shop in Plot No. 362 having being broken and articles looted whereas Plot No. 362 having an area of 2.39 acres Thana No. 24.Tauji 5233 and Khata No. 35 is the subject matter of the suit filed in 2002 and Kedar Rai claimed to have purchase the same and constructed the same over it whereas the said land is in dispute in Title Suit No. 204 of 2002 and case of Paras Rai who had filed the suit as attorney in the plaint as stated that defendants claimed the tile through Bibi Rauffan and defendants claimed to be descendent of Bibi Rauffan, who was Ex-land owner and mutation by C.O., Danapur, in the names of the defendants.

11. It has further been contended that petitioners have falsely been implicated in the case and the allegations made in the complaint are general and omnibus without any specific role 8 attributed to the accused persons. In Complaint Case No. 165 (C) of 2010 and Complaint Case No. 168 (C) of 2010 and the role attributed to Rizwan in Complaint Case No. 378 (C) of 2008 is only abettor. The witnesses are relatives and hench men who are interested and inimical witnesses and the allegations made in the complaint even on taken on the face value are absurd and inherently improbable in view of the fact that petitioners are well educated belong to family of Ex-Jamindar and no prudent person would believe that they will indulge in the alleged occurrence in the manner. It is alleged that, though, title suit is pending, but no application has been filed in Title Suit No. 204 of 2002 after alleged occurrence and it is alleged that false case has been instituted by the complainants who are none else than sons and brother of Paras Rai, who is attorney of Md. Equebal had filed the suit on the basis of power of attorney and the petition has been filed malafidely with intention to wreck vengeance on account of civil dispute and hence place reliance upon decision reported in 1992 Cri.L.J. 527 in Bhajan Lal Case and has asserted that allegations made in the complaint are absurd and petition has been filed malafidely to wreck vengeance and cognizance order was taken mechanically and hence required to be quashed.

12. Learned counsel for the opposite parties however contends that defence taken by the petitioners and the assertion made by the defendants in counter to the complaint filed by the complainant is only defence of the accused and at the stage of 9 taking cognizance or even at the stage of exercising inherent jurisdiction under Section 482 of Cr.P.C., this Court is not required to look into the defence of the accused and defence of the accused is required to look into at the stage of trial to test the veracity of the prosecution case. It has further been contended that allegations made in the complaint makes out an offence and learned Judicial Magistrate after due consideration of the statement of the complainants and witnesses during enquiry found that prima facie case is made out for taking cognizance then this Court may not embark on the enquiry conducted by the learned Judicial Magistrate for taking cognizance and hence there is no merit in the submissions made by the learned counsel for the petitioners at this stage.

13. Heard the parties at length on respective submission made by the party the question for consideration whether allegation made by the complainant in the three cases suffer from absurdity as the allegation made are inherently improbable and manifestly absurd and whether the allegation made and criminal prosecution suffer from malice and case has been instituted with ulterior motive to wreck vengeance as Civil Suit is pending between the parties and the land in suit.

14. However the law is well settled that at the time of taking cognizance and framing of the charge the trial court is not required to look into the defence of the accused and is only required to see the paper produced and collecting by the police 10 during investigation. it is also well settled that the Court at the stage of taking cognizance and framing of charge can only look into whether on the allegation made a prima facie case is made out and it is not necessary to consider in detail and weight in sensitive balance whether fact it proved would be incompatible with innocence of the accused or not has been settled in 2005 (1) PLJR

416. However, it has been observed that, though, the learned Magistrate has no jurisdiction to look into a document even if itg be of unimpeachable character of sterling quality, but the High Court under Section 482 of Cr.p.C. and Article 226 of the Constitution has unlimited jurisdiction where under in the interest of justice may look into or may make such order as may be necessary to prevent the abuse of the process of the Court within the parameter laid down in Bhajan Lal case as observed by the Apex Court in decision reported in 2005 (1) SCC 568.

15. However to buttress the proposition it is proper to quote para 21 of the decisionj reported in 2011 S.C. 1090 (Harshendra Kumar D Vrs. Rebatilala Koley) " In our judgment, the above observations can not be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, material relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked 11 into by the High Court in exercising of its jurisdiction under Section 482 of Cr.P.C.

or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 of Cr.P.C. or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations.

However, in an appropriate case, if on the face of the documents----which are beyond suspicion or doubt-----placed by the accused, the accusations against him can not stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage".

16. The Bhajan Lal case and settle the principle of the quashing of the criminal case on ground enumerated there in it is proper to refer the seven grounds which are ground for quashing the criminal prosecution.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value 12 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 complaint are so absurd and inherently improbable on the basis of which no produce 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 in manifestly attended with malafide and/or where the proceeding in 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.

17. Having heard the party at length and perused the plaint of the title suit Annexure-5 it is note worthy that the authenticity of the document has not been denied. The document filed is the copy of the plaint filed before the court of Sub Judge 1 st Danapur bearing Title Suit No. 204 of 2002. These being the document of unimpeachable character and is being considred for disposal of the case. The plaint show that the suit has been filed by one Paras Rai, son of Sri Shiv Ratan Rai, the constituted attorney of Md. Equebal S/o Late Md. Kallu with regard to land of Khata No. 35, Plot No. 362 area 2.39 acres with specified boundary for declaration of title over the suit property and restraining the defendant by an order of interim injunction from interfering with possession. The plaint shows that accused persons who are petitioners are defendants in the case as Md. Reyaz is defendant no. 41, Md. Jamalludin is defendant no. 19, Dr. Md. Khurshid Jama is defendant no. 11 and Md. Ammanuddin is defendant no. 2 and Rizwan Ashraf is son of Nazama khatoon is defendant. It is alleged that land recorded in Khatian as of Bakast land of ex-landlord Most. Zainab and others and the possession of Most. Rauffan is mentioned. The further case is that Bibi Zainab and other landlond settled the land to one to one Fazal Rahman and delivered the possession over the land and thereafter Md. Kallu, the son of Fazal Rahman came in possession and the defendants who includes the petitioners claim as descendent of Bibi Rauffan on the basis of descendent of the ex-landlord. Hence 14 admittedly the accused persons who are defendants claiming as descendents of ex-landlord and belong to a respectable family.

18. Now in this back ground reverting back to allegation and the statement of the witness and the claim of the petitioners that petitioner is Reyaz is 60 years old, Jamalludin is 50 years of, Khurshid is 58 years old, Ammanuddin is 40 years old and Badrul Hasan is 65 years old (now deceased) descendents of ex-landlord. It is claimed in petition that Reyaz is an Advocate, Jamalludin is an Assistant, Khurshid is an M.B.B.S. Doctor. The complainants are the brother and sons of Paras Rai, instituted the case as attorney of Md. Equebal and hence the complainant are brother and sons of Paras Rai who instituted the case and the accused persons who are defendants in case are descendents of ex-landlord in whose name the property recorded in khatiyan as their Bakasta land of Malik in possession of Bibi Rauffan. Hence apparently there is bonafide dispute can going on with regard to the land of Plot No. 362.

19. Allegation in the Complaint Case No. 168 (C) of 2010 and Complaint Case No. 165 (C) of 2010 are almost same where the brother and son of Paras Rai is the complainant and accused are almost the same the defendants in the case. It is alleged that the six accused persons named including the petitioners came along with 15 to 20 unknown persons break the shop of the complainant standing on Plot No. 362 and in one case Complaint Case No. 165 (C) of 2010 the accused persons took 15 away 153 bags of cement, 12 quintal of iron rod and other articles and in other case Complaint Case No. 168 (C) of 2010 alleged that articles from other shop and in adjoining room was taken away. It is further alleged that they have taken article from other shop. In Complaint Case No. 378 (C) of 2008, also the complainant is son of Paras Rai and allegation that he was restrained and abused and assault took away titan watch and Rs. 150 from his pocket and Rs.20,000/- from purse kept for purchase of cow. However, on fair evaluation of the complaint, it is apparent that the allegations are not only inherently improbable but manifestly absurd in the back ground of the prior civil litigation between the parties. I perused the complaint and the statement of the witness in the complaint, it is apparent that the allegation made in the complaint and the statement of witness during enquiry, the allegations are general and omnibus without any specific role attributed to the petitioners. The fact that as per the averment made in suit that the accused persons belong to a respectable family of ex-landlord and statement of witness during enquiry that they are persons aged 50 to 60 years. It is asserted in the petition that they are Advocate, Assistant in Government department and M.B.B.S. Doctor. There is land dispute going on and suit is pending with regard to the plot of land on which the shop is said to have been looted.

20. In the suit the Paras Rai filed the suit about land of Plot No. 362 and he claim to be attorney, but the complainant 16 who are claiming the shop standing on the land as Plot No. 362 and they claim to be owner of the shop. The allegation in complaint they along with others came looted the shop containing 153 bags of cement, 12 quintal of iron rod and other article and broke the shop standing on the land.

21. Hence it is quite improbable and absurd that accused persons who are defendants come from respectable family of elderly age of 50-60 years will go to break the shop and looted the article. In the allegation, there is no specific overt act attributed to them at all. The only allegation in complaint and statement of witness that they came and broke the shop and looted 153 bags of cement, 12 quintal of iron rod and articles of sweet shop when not even a single specific act has been attributed to the petitioners. The nature of allegation suggests that it must be taken hours in the manner of occurrence alleged. The manner in the complaint filed apparently appears to be wholly lack of bonafide, vexatious, absurd and highly improbable. However if one go back the back ground in the allegations made are not only suffer from absurdity, improbability but in the allegations made absolutely does not makes out an offence and the allegations suffer from malafide with ulterior motive so that accused persons leave their claim for the land which is subject matter of the suit. The allegations made is apparently appears to have been filed against the petitioners to harass with ulterior motive to wreck vengeance to harass them, so that they may not make claim to the 17 contrary of the descendents of Paras Rai appears to have been grabbing the land the complaint case has been filed.

22. Hence under the fact and circumstance, the question for consideration whether inherent power is required to be exercised in the interest of justice.

23. It is well settle that High Court has inherent power to do ex dibitio justice to do real and subtracted justice to prevent the abuse of the process of the Court in the interest of justice.

24. It is relevant to quote para 18 of the decision reported iu 2010 (7) 667 at 671 (Preete Gupta Vrs. State of Jharkhand);

" 18. The powers possessed by the High Court under Section 482 of the Code are very wide and the plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but the Court's failing to use the power for advancement of justice can also lead to grave injustice."

25. In decision reported in 2011(1) PLJR (SC) 23, it has been observed as follows;

"......but where the allegations themselves are so absurd that no reasonable man would accept the same, the High Court could not have thrown its arms in the air and expressed its inability to do anything in the 18 matter. Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested with the tremendous powers thereunder to pass any order in the interest of justice........"

26. However, in decision reported in Bhajan Lal case reported in 1992 S.C. 604 giving a note of caution that inherent jurisdiction is required to be applied sparingly, cafefully in exceptional circumstance in rare of the rarest case.

27. However, reverting back to merit of the case, it is apparent that allegations levelled is apparently wholly lack of bonafide, vexatious are absurd highly improbable and the proceeding has been maliciously instituted with ulterior motive with a view to wreck vengeance so that accused persons may not lay any claim and leave their claim over the property which is apparent from the complaint itself. The implication of the petitioners is meet to harass and humiliate the accused persons who are defendants in the case with regard to the land dispute. The only motive to file the complaint is to harass the petitioners so that they have not lay claims and leave their claim over the land. Hence under these fact and circumstance along with order taking cognizance to continue and permitting the complainant to pursue the frivolous complaint is abuse of the process of the Court.

28. Hence it is expedient in the interest of justice the order taking cognizance and the criminal prosecution to continue 19 the case is hereby quashed. Accordingly, the petitions stand allowed.


quashing of the
       u
       i

             m.p.                          (Gopal Prasad, J)

Unlock Advanced Research with PRISMAI

Patna High Court - Orders