Patna High Court - Orders
Ram Balak Singh & Ors. vs The State Of Bihar & Anr. on 27 June, 2014
Author: Amaresh Kumar Lal
Bench: Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.12849 of 2011
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1. Ram Balak Singh
2. Sikandar Singh
Both sons of Kailash Singh
3. Geeta Singh, son of Ram Balak Singh
4. Jia Singh
5. Chand Kumar @ Chand Singh
Both sons of Sikandar Singh
All resident of village- Bahadurpur, P.S.- Saare, Distt. Nalanda.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Lorki Devi, wife of Awadh Yadav, resident of village- Bahadurpur, P.S.-
Saare, District- Nalanda.
Complainant/Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Shymeshwar Dayal, Adv.
Mrs. Nirmala Kumari, Adv.
For the Complainant : Mr. Ratnakar Ambastha, Adv.
For the State : Dr. Rabindra Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
C. A. V. ORDER
8 27-06-2014This application has been filed for quashing the order dated 13.1.2010 passed by the learned Judicial Magistrate, 1st Class, Biharsharif at Nalanda by which the cognizance has been taken against the petitioners for the offence punishable under Sections 147, 448, 379, 380 and 504/149 IPC in Complaint Case No. 1081 C of 2008.
The complainant-opposite party no. 2 filed complaint case no. 1081-C of 2008 on 25.8.2008 mentioning therein that on 23.8.2008 at 10 P.M. the complainant (opposite party no. 2) was gossiping with the members of her family on the roof of her house Patna High Court Cr.Misc. No.12849 of 2011 (8) dt.27-06-2014 2/9 where sometime before they had gone to take meal. All of a sudden, the petitioners armed with various weapons entered into the house of the complainant and indulged into marpit on the roof. The petitioner no. 5 Chand Kumar @ Chand Singh took an attaché from the room containing a cash of Rs.15,000/-, clothes and ornaments. He is also alleged to have snatched a gold neckless from the neck of the complainant and also assaulted her with lathi. Accused Geeta Singh is alleged to have taken a bag containing gram (Chana) worth Rs.1100/-. When Awadh Yadav, husband of the complainant rushed to her rescue the accused- petitioner no. 4 Jia Singh hit him with the butt of pistol in his left hand, right thumb. The petitioner no. 2 Sikandar Singh alleged to have assaulted Awadh Yadav with lathi on his head with a view to kill him. As a result of which, he suffered head injury and blood started oozing out. Accused Ram Balak Singh is alleged to have hit Awadh Yadav with back of garasa on his waist. On raising alarm witnesses came there. Thereafter, accused persons fled away with attaché, jewellery and the bag of gram weighing 50 kg.
It has further been alleged that opposite party no. 2 went to police station to lodge FIR on 24.8.2008 but she saw the petitioner Ram Balak Singh talking with Police Officer (Daroga) who told her to lodge the complaint petition in the Court. It has Patna High Court Cr.Misc. No.12849 of 2011 (8) dt.27-06-2014 3/9 further been alleged that reason behind the occurrence is that there had been an altercation between the complainant and the petitioners with regard to toddy tree.
After examining the complainant on solemn affirmation and examining witnesses, the learned Magistrate has found a prima facie case under Sections 147, 448, 379, 380, 506/149 IPC against the petitioners and the order has been passed to file requisites for issuance of notice to the accused-petitioners.
Learned counsel for the petitioners has submitted that false complaint has been filed against the petitioners. According to the complaint case, the occurrence has taken place at 10 p.m. on 23.8.2008, prior to it Awadh Yadav, the husband of the complainant had lodged Sare P.s. Case No. 61 of 2008 against the petitioners alleged to have assaulted him with lathi causing head injury and the reason behind the occurrence is the toddy tree but in complaint petition there has been no averment regarding the occurrence by the accused-petitioners against her husband Awadh Yadav. He has further submitted that Awadh Yadav has lodged this case against the petitioners with a view to save himself from Barbigaha Police Station Case No. 135 of 2008 lodged by Panik Singh @ Jakiran Singh, the brother of petitioner nos. 1 and 2 against Awadh Yadav, the husband of the complainant opposite Patna High Court Cr.Misc. No.12849 of 2011 (8) dt.27-06-2014 4/9 party no. 2, Dukhi Yadav, Dinesh Yadav and Umesh Yadav who are witnesses in Sare P.S. Case No. 61 of 2008. It has been submitted that a simple reading of first paragraph of the complaint case indicates that the complainant,victim and all other family members had taken dinner before 10 P.M. on 23.8.2008 and were relaxing on their terrace like any casual day. Even if it is assumed that all family members took 30-40 minutes for dinner at residence then it is crystal clear that all the members were at the residence from 9.20 on 23.8.2008. The medical report of the victim Awadh Yadav at paragraph 31 of the case-diary of Sare P. S. Case No. 61 of 2008 shows that he was at Referral Hospital, Asthama, Barbigha at 9 p.m. on 23.8.2008. Therefore, the contradiction is how the victim being present at Referral Hospital, Asthama, Barbigha at 9 pm, travelling the distance of almost 10 Kms in 20 minutes will reach at his residence. Both in Sare P.S. Case and the complaint case, Awadh Yadav was stated as victim having been severely assaulted on head and injured. If said Awadh Yadav was severely assaulted on head at 4 pm on 23.8.2008 as per Saare P.S. Case, then the fact of his ailing condition ought to have been mentioned in the Complaint case which occurred at 10 PM on the same day i.e. 23.8.2008 and the complaint was filed on 25.8.2008.
It is further submitted that the complaint case is out and Patna High Court Cr.Misc. No.12849 of 2011 (8) dt.27-06-2014 5/9 out a false case which has been filed with malicious intention with ulterior motive for wrecking vengeance on the accused with a view to spite them due to private and personal grudge. As such the cognizance order and the proceeding of the complaint case is an abuse of the process of the court. In support of this contention, he has relied upon a decision in the case of State of Haryana vs. Bhajan Lal reported in AIR 1992 SC 604. Under the aforesaid circumstances it would be an abuse of the process of law to allow the prosecution to continue against the petitioners on the basis of a malicious case.
Learned counsel for opposite party has submitted that the petitioners have challenged the order dated 13.1.2010 by which a prima facie case has been found by the learned Magistrate on the basis of complaint petition after examining complainant on solemn affirmation and considering the evidence of two witnesses Anuki Devi and Awadh Yadav. He has further submitted that perusal of the complaint petition and the evidence on the record manifest that a prima facie case is made out against the petitioners and the learned Magistrate has rightly taken cognizance against the petitioners for issuance of process against them.
After hearing learned counsel for both the parties and on perusal of the complaint petition, the statement of complainant on Patna High Court Cr.Misc. No.12849 of 2011 (8) dt.27-06-2014 6/9 solemn affirmation and also the evidence of her witnesses and on perusal of the case-diary of Sare P.S. Case No. 61 of 2008 lodged by so-called victim Awadh Yadav shows that on 23.8.2008 while grazing buffalo she was assaulted by Panik Singh @ Jarikan Singh, the brother of petitioner nos. 1 and 2, Sikandar Singh and Ram Balak Singh. On raising alarm, the brother of Umesh Yadav and Dukhi Yadav, the brothers of Awadh Yadav and Bijendra Yadav came to his rescue. The occurrence took place at about 4 p.m. C D Paragraph 31 of Sare P.S. Case No. 61 of 2008 shows that Awadh Yadav, the husband of the complainant, opposite party no. 2 was examined at 9 p.m. on 23.8.2008 at Referral Hospital Asthama. Barbigaha P. S. Case No. 135 of 2008 has been instituted on the fard beyan of Tarikan Singh, the brother of petitioner nos. 1 and 2 recorded by ASI on 23.8.2008 at 19.30 hours at Referral Hospital, Barbigaha alleging therein that on 23.8.2008 at about 4 p.m. while he was going to village Abaje Faridpur to purchase a she-bufallo with his nephew Geeta Kumar and reached near Pulia Awadh Yadav, Dukhi Yadav, Dinesh Yadav and Umesh Yadav all the four sons of Jangal Yadav village Bahadurpur P.S. Sare District Nalanda abused and enquired. He told that he was going to purchase a she-buffalo, thereafter Awadh Patna High Court Cr.Misc. No.12849 of 2011 (8) dt.27-06-2014 7/9 Yadav assaulted him with rod causing injury in his left elbow and his hand was fractured, he fell down and other accused assaulted him with lathi. In the meantime, Umesh Yadav, brother of Awadh Yadav snatched his money which was for the purpose of purchasing she-bufallo. The reason for the occurrence was grazing of field by buffalo. A case under Sections 323, 341, 379, 504/34 IPC was lodged against them.
It appears that definitely the occurrence between Awadh Yadav and the brother of petitioner nos. 1 and 2 has taken place on 23.8.2008 at 4 p.m., whereas, according to the complaint petition the occurrence with complainant and her husband Awadh Yadav has taken place at 10 P.M. on 23.8.2008, definitely after the occurrence between Awadh Yadav and Tanikan Singh, the brother of petitioner nos. 1 and 2.
It also appears that Awadh Yadav was examined by the doctor at Referral Hospital, Asthama at 9 p.m. on 23.8.2008 and the time of occurrence of complaint case is 23.8.2008 at 10 p.m. The complaint case has been lodged on 25.8.2008 but there is no mention of any occurrence with the husband of the complainant by the accused-petitioners or the brother of petitioner nos. 1 and 2. The so-called victim of complaint case was examined by the doctor at Referral Hospital at 9 P.M. on 23.8.2008 and according Patna High Court Cr.Misc. No.12849 of 2011 (8) dt.27-06-2014 8/9 to the complaint case after taking meal by the complainant and her husband and other members of family they were gossiping and the occurrence took place at 10 p.m. It appears that the occurrence as narrated in the complaint case is not fit to be believed. The occurrence appears to be highly improbable.
It is settled principle of law that in exercise of extraordinary power under Article 226 of the Constitution of India or under the inherent power under Section 482 of Code of Criminal Procedure, the Court has power and duty to see that the process of any Court should not be abused. To prevent the abuse of the process of any court or otherwise to secure the ends of justice, such power should be exercised. Certain categories of cases by way of illustration has been given by the Hon'ble Supreme Court in paragraph 108 of the judgment in case of State of Haryana vs. Bhajanlal, reported in AIR 1992 SC 604.
In my opinion, this case comes under the purview of illustration No.7 " where a criminal proceeding is manifestly with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and view a view to spite him due to private and personal grudge".
It appears that the complaint petition is an outcome of personal grudge between the complainant and his family members Patna High Court Cr.Misc. No.12849 of 2011 (8) dt.27-06-2014 9/9 and petitioner nos. 1 and 2 and their family members.
Considering the facts and circumstances stated above, it appears that pendency of the complaint case is an abuse of the process of the court to allow the prosecution to continue.
For the aforesaid reasons, I find and hold that the continuation of the proceeding of Complaint Case No. 1081 C of 2008 will be an abuse of the process of the Court. It would be sheer waste of public time and money apart from causing harassment to the petitioners. Taking this matter in consideration the impugned order dated 13.1.2010 is fit to be quashed. Accordingly, it is quashed.
In the result, this application is allowed.
(Amaresh Kumar Lal, J) N. A. F. R. Kanchan/-