Patna High Court - Orders
Binod Kumar Jha & Ors vs The State Of Bihar & Anr. on 17 December, 2012
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.4731 of 2011
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1. Binod Kumar Jha, son of Late Dasarath Jha
2. Archana Mishra, Wife of Sri Binod Kumar Jha
Both resident of Priyadarshni Nagar, P.S.-Rupaspur (Danapur) ,District-
Patna.
3. Kumod Kumar Jha
4. Pramod Kumar Jha
Both sons of Late Dasarath Jha, resident of Gola Road, P.S.-Rupaspur
(Danapur), District-Patna.
5. Rajeev Mishra, son of Late Dr. Bhupendra Kumar Mishra
Resident of Dakra Colony, P.S. -Khelari, District-Ranchi.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Amarjeet Kumar, son of Sri Awadh Narayan Singh, resident of village -
Dehuli, P.S. -Dulhin Bazar, District- Patna.
3. Amrita Kumari, D/o Binod Kumar Jha, resident of Priyadarshi Nagar,
P.S. - Rupaspur (Danapur ), District - Patna.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Sanjay Kumar, Advocate
Mr. Ajay Kumar Jha, Advocate
For the State: Mr. Chandrasen Prasad Singh, A.P.P.
For the Opposite Party No. 2: Mr. N.K. Agrawal, Sr. Advocate
For the Opposite Party No. 3: Mr. Vindhya Keshri Kumar, Sr. Advocate
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
CAV ORDER
7 17-12-2012Five petitioners, while invoking inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 10.12.2010 passed by Sri Anand Kumar Singh, Judicial Magistrate 1st Class, Patna, in Complaint Case No. 1571(C) of 2007. By the said order learned Magistrate has rejected the petition filed under Section 245 of the Code of Criminal Procedure, for discharge of the Patna High Court Cr.Misc. No.4731 of 2011 (7) dt. 17 -12-2012 2/10 petitioners.
Short fact of the case is that opposite party no. 2 filed a complaint in the court of Chief Judicial Magistrate, Patna, on 28.5.2007 disclosing therein that he was married with Amrita Kumari, daughter of petitioner no. 1. The marriage was solemnized at the complainant's house i.e. Rishi Lodge, Ashram Gali, Shastrinagar, Patna, according to Hindu rites and rituals and after marriage he and victim had applied for registration of their marriage before Marriage Officer, Raghunathpur, Purulia. Subsequently, marriage certificate was also granted. Due to the said marriage accused persons of the complaint petition, who are father, mother and relatives of so-called wife of complainant became aggrieved and tried to take life of both the complainant and the victim. Many other facts have also been disclosed. It was alleged that accused persons subsequently committed the offence of abortion of child of Amrita Kumari. After noticing he tried to contact Amrita Kumari. Thereafter, accused persons asked him to come near botanical garden gate on 26.5.2007 at 7.00 A.M. When the complainant went there he saw all the accused persons present there along with Amrita Kumari. Then he demanded his child. Thereafter, all the accused persons assaulted him badly with fats and fists. In the said occurrence it Patna High Court Cr.Misc. No.4731 of 2011 (7) dt. 17 -12-2012 3/10 was alleged that petitioner no. 1 snatched his golden chain and accused no. 4 i.e. petitioner no. 4 took money bag from the pocket of the petitioner containing Rs. 5,000/. After filing of the complaint petition and conducting inquiry cognizance order was passed. At the stage of charge a petition was filed for discharge on behalf of the petitioners which was rejected on 10.12.2010, and same has been impugned in the present petition.
Sri Sanjay Kumar, learned counsel who was assisted by Sri Ajay Kumar Jha, learned counsel for the petitioners, at the very outset submits that the present complaint petition was filed maliciously and to pressurize the petitioners in a kidnapping case i.e. Gardanibagh ( Shastrinagar ) P.S. Case No. 189 of 2006, which was registered on 19.2.2006 against the complainant / opposite party no. 2. The said case was registered for the offences under Sections 363, 365, 366 of the Indian Penal Code and subsequently Sections 376, 366(A), 342/34 of the Indian Penal Code was added in the F.I.R. He submits that the learned court below has committed serious error in not discharging the petitioners. He submits that the complainant / opposite party no. 2 was made accused for kidnapping minor daughter of petitioner no. 1 namely Amrita Kumari. Since she was missing, a report was lodged on 14.2.2006 in the Shastrinagar Police Patna High Court Cr.Misc. No.4731 of 2011 (7) dt. 17 -12-2012 4/10 Station and subsequently after noticing that the daughter of the petitioner no. 1 was kidnapped and was in confinement of the accused persons in village - Dehuli, Police Station - Dulhin Bazar, Patna, he (petitioner no. 1) filed an application before Officer - In - Charge, Shastrinagar Police Station on 19.2.2006 and as such F.I.R. vide Gardanibagh (Shastrinagar) P.S. Case No. 189 of 2006 was registered for offences as indicated above. It was disclosed in the F.I.R. that few days before the occurrence the opposite party no. 2 (Amarjeet Kumar) was slapped by the daughter of petitioner no. 1 since the opposite party no. 2 had misbehaved with his daughter Amrita Kumari. This information was earlier given by his daughter but same was not taken seriously. However, subsequently, in retaliation, the opposite party no. 2 along with other accused persons had kidnapped his daughter. During investigation of Gardanibagh (Shastrinagar) P.S. Case No. 189 of 2006 statement of victim girl was also got recorded under Section 164 of Cr.P.C. and she asserted categorically that she was kidnapped by the complainant / opposite party no. 2. Learned counsel for the petitioner has drawn my attention to Annexure - '3' to the petition i.e. photo copy of statement of victim girl who has been arrayed as opposite party no. 3 in the present petition. He submits that specific fact Patna High Court Cr.Misc. No.4731 of 2011 (7) dt. 17 -12-2012 5/10 regarding kidnapping of the victim girl by complainant / opposite party no. 2 was mentioned in her statement recorded under Section 164 of the Cr.P.C. In the said case police after investigation submitted charge sheet and complainant / opposite party no. 2 along with others were put on trial vide Sessions Trial No. 1028 of 2006 / 250 of 2006. It was argued that since the complainant / opposite party no. 2 was already made accused for serious offences in Gardanibagh (Shastrinagar) P.S. Case No. 189 of 2006 and he was charge sheeted and put on trial; in a well designed manner, at much belated stage, on 28.5.2007, the opposite party no. 2 filed the present complaint petition on an allegation that he was assaulted by the petitioners at the gate of botanical garden, Patna at about 7 A.M. on the so-called date of occurrence and falsely it was also alleged that in the occurrence his golden chain as well as money bag containing Rs. 5,000/- was snatched.
In this case by order dated 9.3.2011 learned counsel for the petitioners was permitted to implead the lady in question as opposite party no. 3 and as such victim girl namely Amrita Kumari, who is daughter of petitioner no. 1 was impleaded as opposite party no. 3. In this case opposite party no. 3 has also appeared and filed a detailed affidavit.
Patna High Court Cr.Misc. No.4731 of 2011 (7) dt. 17 -12-20126/10
Sri N.K. Agrawal, learned senior counsel appearing on behalf of complainant / opposite party no. 2 has vehemently opposed the prayer of the petitioners. He submits that facts stated in the complaint petition itself discloses commission of offences under Sections 323, 379 , 506 / 34 of the Indian Penal Code. He submits that even during inquiry the witnesses had supported the case, and as such, the learned Magistrate has taken cognizance of offence under Sections 323, 379, 506/34 of the Indian Penal Code. He further submits that at the stage before charge, witnesses had further corroborated the evidences which are sufficient for framing of charge. According to learned counsel for the complaint / opposite party no. 2 there is no apparent error in the order impugned whereby petition filed on behalf of the petitioners under Section 245 of the Cr.P.C. was rejected. He submits that at the stage of charge only requirement is to see as to whether prima facie case is made out or not. He submits that present petition is fit to be rejected outrightly. However, learned counsel for the complainant / opposite party no. 2 was not in a position to dispute the fact that the complainant was F.I.R. named accused and against him after submission of charge sheet he was put on trial.
Sri Vindh Keshri Kumar, learned senior counsel Patna High Court Cr.Misc. No.4731 of 2011 (7) dt. 17 -12-2012 7/10 appearing on behalf of victim/ opposite party no. 3 by referring to averment made in the affidavit of opposite party no. 3 which was filed on 27.9.2012 submits that the opposite party no. 2 in Sessions Trial No. 1028 of 2006 / 250 of 2006 along with other five co-accused has already been convicted and sentenced by judgment dated 1st July, 2011. According to him the judgment of conviction which has been brought on record along with the affidavit of opposite party no. 3 is corroborative of the fact that the present complaint petition was filed maliciously with an object to pressurize the petitioners. He submits that it is a clear cut case of malice prosecution and as such this court in view of law laid down by the Apex Court in a case reported in A.I.R. 1992 SUPREME COURT 604 (State of Haryana and others v. Ch. Bhajan Lal and others) may quash the impugned order and entire prosecution in Complaint Case No. 1571(C) of 2007.
Besides hearing learned counsel for the parties, I have also perused the materials available on record. In this case, there is no dispute that complainant / opposite party no. 2 was made accused in Gardanibagh (Shastrinagar) P.S. Case No. 189 of 2006 registered for the offence under Sections 363, 365 & 366 of the Indian Penal Code subsequently, added Sections 376 , 366(A) & 342/34 of the Indian Penal Code for kidnapping the daughter of Patna High Court Cr.Misc. No.4731 of 2011 (7) dt. 17 -12-2012 8/10 petitioner no. 1 & 2. The said F.I.R. was lodged on 19.2.2006 and the present complaint was filed on 28.5.2007. The date of occurrence which has been mentioned in the complaint petition is 25.5.2007. However, in paragraph no. 13 of the complaint petition, the complainant has stated that accused persons had called the complainant near botanical garden gate on 26.5.2007 at 7.00 A.M. However, subsequently, it has been stated that on call the complainant went to botanical garden gate on 25.5.2007 at 7.00 A.M. The court is not passing any comment regarding the date whether it was 26.5.2007 or 25.5.2007 but fact remains that date of occurrence in the complaint petition has been alleged as 25.5.2007. Once F.I.R. was lodged against the complainant on 19.2.2006 regarding kidnapping and other offences in respect of daughter of petitioner no. 1 and 2 and thereafter charge sheet was also submitted on 24.4.2006 as per Annexure - 4 i.e. photo copy of charge sheet, it is difficult to believe the story made out in the complaint petition that on 25.5.2007 on call by the petitioners opposite party no. 2 had gone to botanical garden and he was assaulted by the accused persons in presence of the victim i.e. opposite party no. 3. Moreover, in Gardanibagh (Shastrinagar) P.S. Case No. 189 of 2006, after submission of charge sheet the complainant / opposite party no. 2 was put on Patna High Court Cr.Misc. No.4731 of 2011 (7) dt. 17 -12-2012 9/10 trial in the year 2006 and he along with others has already been convicted and sentenced, which is evident from enclosure to the affidavit of opposite party no. 3 i.e. judgment dated 1 st July, 2011 in Sessions Trial No. 1028 of 2006 / 250 of 2006. Meaning thereby, that on the date of filing of the complaint petition the complainant / opposite party no. 2 was already put on trial. Accordingly, the court is satisfied that the present complaint petition was filed maliciously by the opposite party no. 2. The reason for filing of such complaint petition was that as per the instance of the petitioner no. 1 F.I.R. was lodged on 19.2.2006 against the opposite party no. 2 vide Gardanibagh (Shastrinagar) P.S. Case No. 189 of 2006. It is true that at the time of charge only requirement is to see as to whether prima facie case is made out or not, but at the same time on the basis of material available on record the court is satisfied that prosecution has been initiated with malice. The court is well competent under Section 482 of the Code of Criminal Procedure to interfere with such prosecution in view of law laid down by the Apex Court in Bhajan Lal Case (Supra), which has been reiterated time without number. It is also true that power under section 482 of the Code of Criminal Procedure for interference with the criminal prosecution is to be exercised sparingly and in rarest of rare Patna High Court Cr.Misc. No.4731 of 2011 (7) dt. 17 -12-2012 10/10 cases. However, in view of the facts and circumstances of the present case, since the court is satisfied that the present complaint was filed maliciously, it is required to interfere with the impugned order and as such the order dated 10.12.2010 passed by Sri Anand Kumar Singh, Judicial Magistrate 1st Class, Patna, is set aside and the entire criminal proceeding against the petitioners in Complaint Case No. 1571(C) of 2007 is hereby set aside and the petition stands allowed.
(Rakesh Kumar, J) Praful/-