Patna High Court - Orders
Nanhu Pd. Singh @ Nanhu Prasad And Ors. vs The State Of Bihar & Anr on 11 October, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.12388 of 2011
======================================================
Nanhu Prasad Singh @ Nanhu Singh & Ors
.... .... Petitioner/s
Versus
The State Of Bihar & Anr
.... .... Opposite Party/s
======================================================
with
Criminal Miscellaneous No.12409 of 2011
======================================================
Nanhu Pd. Singh @ Nanhu Prasad and Ors.
.... .... Petitioner/s
Versus
The State Of Bihar & Anr
.... .... Opposite Party/s
======================================================
Appearance :
(In Cr.Misc. No.12388 of 2011)
and
(In Cr.Misc. No.12409 of 2011)
For the Petitioner/s : Mr. Ashutosh Jha and Mr. Anil Kumar, Advs.
For the Opposite Party/ : Mr. Jitendra Kumar Roy-1, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
4 11-10-2012Heard learned counsel for the petitioners and learned counsel for the State.
In this case, petitioners are challenging the orders dated 11.11.2008 and 3.11.2009 passed by the learned Judicial Magistrate 1st class, Danapur in Complaint Case Nos.795(C)/2008 and 201(C)/2009 respectively.
With the consent of the parties, these petitions are being disposed of by the common order with the assistance of petitioner and State. In both the cases notices were issued to the 2 Patna High Court Cr.Misc. No.12388 of 2011 (4) dt.11-10-2012 2/8 opposite party who appeared through lawyer but did not choose to contest these petitions.
In Criminal Misc. No. 12388/2011 In this case, petitioners are challenging the order dated 11.11.2008 passed by learned Judicial Magistrate 1st class, Danapur in Complaint Case No. 795©/2008 by which the court below has taken cognizance for offence under sections 147 and 323 of the Indian Penal Code arising from Complaint Case No. 795©/2008 for offences under Sections 147, 148, 323, 452, and 380 of the Indian Penal Code.
In the present case, the allegation has been made, on 31.8.2008 at 6.00 P.M. when the complainant had sat in his Dalan, accused petitioners came there with weapons and on the order of the co-accused, Kaushal Sinha started assaulting him with legs and fists, co-accused, Manu Kumar fired from his pistol. It has further been alleged that on the order of the co-accused, Nirmal Kumar snatched away his Golden chain worth Rs. 15,000/- and the co- accused, Vimal Kumar took away an attaché having clothes of his wife worth Rs. 5,000/-. It has further been alleged that accused persons threatened for dire consequence and threat was hurled that complainant would be killed if he would not withdraw the case. It has further been alleged, when the alarm was raised, 3 Patna High Court Cr.Misc. No.12388 of 2011 (4) dt.11-10-2012 3/8 reached the place of occurrence and saw whole incident. It has further been alleged that on 1.9.2008 the complainant had gone to Paliganj police station to institute a case but the Officer Incharge of said police station refused to institute a criminal case against the accused persons. Hence, on the basis of complaint petition cognizance has been challenged.
In Cr. Misc. No. 12409/2011 The petitioner is challenging the order dated 3.11.2009 passed by learned Judicial Magistrate 1st class, Danapur in Complaint Case No. 201(C)/2009 by which the cognizance has been taken by the learned Magistrate against the petitioners for offence under sections 379 and 34 of the Indian Penal Code arising from Complaint Case No.201(C)/2009.
In the complaint petition it has been alleged that on 1.3.2009 at about 12.00 PM when the complainant was going to Kurji Hospital, Patna, accused petitioners surrounded and assaulted him, co-accused, Nanhu Singh committed robbery and forcibly snatched his bag having Rs. 10,000/-. It has further been stated that the complainant made protest, accused persons threatened to kill him if he would raise the alarm and fled away towards the west. It has further been stated that money looted by the accused persons was meant for payment of bill raised by the 4 Patna High Court Cr.Misc. No.12388 of 2011 (4) dt.11-10-2012 4/8 hospital for the treatment of the wife of his brother, Dileshwar Kumar. It has further been stated that the complainant had informed the occurrence to Paliganj police station but the police did not take cognizance but on the basis of aforesaid statement, cases were registered as Complaint Case Nos. 795©/2008 and 201©/2009 respectively.
The counsel for the petitioners submits that it is out and out a malicious prosecution to settle the personal vendetta which is apparent from following facts which are as follow:-
It has been submitted, a Title Suit No. 45 of 1993 was filed and same was decided in favour of the petitioners and being aggrieved by the said judgment, the complainant filed an appeal on 20.4.2012 vide T.S. Appeal No. 15 of 1996 and the same was dismissed. It has further been submitted that one Kaushal Kumar Sinha, Petitioner No. 2 had lodged Complaint Case No. 552 of 2003 and the court below took cognizance vide order dated 19.4.2003. The charges in the aforesaid criminal cases were framed vide order dated 21.1.2008, after recording of evidence the case was fixed for judgment on 16.8.2008. But the counsel for the petitioners could not inform about the result of the criminal case, a petition was filed for the transfer of the case before another court. He has further submitted that as because the 5 Patna High Court Cr.Misc. No.12388 of 2011 (4) dt.11-10-2012 5/8 case was matured, the complainant filed three cases consecutively on 21.6.2008/31.8.2008/6.3.2009 and submitted that these cases were filed out of the maliciousness and to settle personal vendetta. He has further submitted that the case has been filed with the ulterior motive and oblique purpose for wreaking vengeance of accused persons and with a view to spite him due to private and personal grudge. He has submitted that aforesaid facts are sufficient to give an indication of malicious prosecution which requires interference from this Court as continuance of the same will be an abuse of process of Court.
The counsel for the petitioner submits that petitioners are respectable persons of the society and the cases have been filed to tarnish their image. The age and posts they occupy are factors attending circumstances of malicious prosecution. Petitioner No. 1, Nanhu Singh is an old man of 80 years, petitioner No. 2 has claimed that he has also been running a medicine factory, whereas petitioner No. 3 is a senior teacher in B.N. Collegiate, Bankipur, Patna having P.hd Degree, petitioner No. 4 is a contractor having good character in the Government as well as in the Public and petitioner No. 5 is an Engineer posted at Katihar, petitioner No. 6 is appearing in Bihar Public Service Commission, petitioner No. 7 he is an Engineer 6 Patna High Court Cr.Misc. No.12388 of 2011 (4) dt.11-10-2012 6/8 posted at Ranchi (Jharkhand), petitioner No. 8 who is a handicapped person cannot move without the support of any person and petitioner No. 9 is a student of Engineering at Dehradoon Engineering College at Dehradoon (Uttranchal) prosecuting his study.
The counsel for the State has challenged the submission of the petitioner and submitted that a title suit or the result of the appeal has no link with the present case, as the title suit was decided in 1995 and T.S. Appeal has been decided after the filing of the case in 2012 and criminal cases lodged by these petitioners against the opposite party No. 2 cannot lead to inference of the malicious prosecution. He has submitted that the criminal case was lodged by Kaushal Kr. Sinha in the year 2003 whereas present cases have been lodged in 2008. He has further submitted that the petitioner could not inform this Court about the status of the criminal cases lodged by petitioner No. 2.
This Court is of the very conscious of the parameter that has been laid down by the Hon'ble Supreme Court in a case of State of Haryana v. Bhajan Lal, reported in AIR 1992 SC 604 where the Hon'ble Court has given a note of caution that the power of quashing a criminal proceeding u/s 482 of Cr. P.C. be exercised very sparingly and with circumspection and that too in 7 Patna High Court Cr.Misc. No.12388 of 2011 (4) dt.11-10-2012 7/8 the rarest of rare cases that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."
At the end, paragraph 108 of the aforesaid judgment culled out grounds to exercise the inherent power u/s 482 Cr. P.C. with the order of cognizance or can quash the FIR.
Having considered the rival contention of the parties and in view of aforesaid judgment, this Court finds that the judgment of civil case has no bearing or having no living nexus with the present case, merely the civil case filed in the year 1995 cannot be a ground for giving inference that the present case is a malicious prosecution. So far criminal case is concerned the petitioner could not point out the result of the criminal case save and except the criminal case lodged in the year 2006. The case was lodged in the year 2006 and if the complainant was interested to take revenge, we would not have waited for such a long period, he could have lodged the case just after lodging the criminal case by the petitioner.
In this view of the matter, this Court does not find 8 Patna High Court Cr.Misc. No.12388 of 2011 (4) dt.11-10-2012 8/8 any substance in the argument of the petitioner. However, it appears that in this case some exaggeration has been made, as Nanhu Pd. Singh (petitioner No.1) being 80 years old, petitioner No. 3 Dr. Nirmal Kumar (Senior teacher) and Manu Kumar (petitioner No. 9) who is a student of Engineering of Cr. Misc. No. 12409/2011 have also been made accused. Looking to the nature of allegation against aforesaid petitioners and age of petitioner No. 1, this Court feels that the impugned order so far it relates to Nanhu Singh-Petitioner No. 1, Dr. Nirmal Kr. Singh, Petitioner No. 3 and petitioner No. 9, Mannu Kumar Complaint Case No. 201(C)/2009 is required to be interfered. Accordingly order of cognizance dated 03.11.2009 arising from Complaint Case Nos. 201(C)/2009 is quashed with regard to aforesaid persons and with regard to other accused persons, the court below will proceed with case in accordance with law and similarly order dated 11/11/2008 arising from Complaint Case No. 795(C)/2008 with respect to Nanhu Pd. Singh (petitioner No. 1) and Dr. Nirmal Kumar (petitioner No. 3) is also quashed.
Accordingly, both petitions are partly allowed.
(Shivaji Pandey, J) Mahesh/-