Patna High Court
Baidhnath Rai & Ors vs State Of Bihar & Anr on 13 August, 2010
Author: Rakesh Kumar
Bench: Rakesh Kumar
CRIMINAL MISCELLANEOUS No.4951 OF 2001
In the matter of an application under Section 482 of the
Code of Criminal Procedure
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1. Baidhnath Rai Son of Dhanpat Rai.
2. Jagnath Rai, Son of Dhanpat Rai
3. Dhanpat Rai, Son of Late Ram Dayal Rai
4. Metul Rai @ Methul Rai, Son of Late Yogendra Rai
5. Umesh Rai, Son of Late Yogendra Rai
6. Parikshan Rai, Son of Late Ram Dayal Rai
7. Ganga Rai @ Ganga Prasad, Son of Late Yogendra Rai
8. Ram Iqbal Rai, Son of Parikshan Rai
All residents of Village- Narha, P.S.Bajpatti,
District- Sitamarhi ------------- Petitioners
Versus
1. THE STATE OF BIHAR
2. Most. Sundar Devi, Wife of Late Ram Daresh Rai,
resident of Village- Narha, P.S. Bajpatti, District-
Sitamarhi ---------------- Opp.Parties.
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For the petitioners: S/Sri Jagdish Prasad No.1,
Virendra Kumar, and
Ashok Kumar Verma, Advocates
For Opp.Party No.2: Sri Mahendra Thakur, Advocate
For the State: Sri Hriday Prasad Singh, A.P.P.
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P R E S E N T
THE HON'BLE MR. JUSTICE RAKESH KUMAR
Rakesh Kumar, J. Eight petitioners, who are relative of Opp.Party no.2,
have come before this Court for quashing of an order dated
14.11.2000passed by Sri Sita Ram Prasad, Judicial Magistrate, 1st Class, Pupari at Sitamarhi in Complaint Case No.C 1-170 of 2000, T.R. No.873 of 2000. By the said order, the learned Magistrate has taken cognizance of offences under Sections 376,147,323 and 341 of the Indian Penal Code and has summoned the petitioners.
2. Short fact of the case is that Opp.Party no.2 initially filed a complaint, which was registered as Complaint case No.159 of 2 1999. However, the same was referred to the police for its registration and investigation under Section 156(3) of the Code of Criminal Procedure and , as such, an F.I.R. vide Bajpatti P.S. Case No.103 of 1999 was registered on 10.9.1999 for offences under Sections 376,144,323,450,387, 341/34 of the Indian Penal Code against the petitioners. While investigation was going on, the complainant-Opp.Party no.2 apprehending that she may not get justice by the police, filed a protest petition in the court of the learned Sub Divisional Judicial Magistrate, Pupri at Sitamarhi. During investigation, police found that it was a false case. The investigating Officer noticed that dispute in between the parties was going on in relation to 6 Bighas of land, which was transferred in the name of petitioner nos.1 and 3 by the mother-in-law of complainant/Opp.Party no.2. In the case, final report was submitted on 15.12.1999, a copy of the same has been brought on record as Annexure-4 to the petition. Subsequently, the protest petition was treated as complaint, which was numbered as Complaint Case No.C1-170 of 2000. After conducting enquiry, the learned Magistrate took cognizance of offences as mentioned above. In the protest-cum- complaint petition, an allegation was made against petitioner nos.1 and 4 that both the accused persons committed rape upon the complainant, while she was sleeping in her house along with her daughter. In the complaint petition, a vivid picture has been made. This Court is refraining from referring the specific statement made in the complaint petition. It was alleged in the complaint 3 petition that after committing rape the complainant raised hulla. However, one of the accused persons fled away from the place of occurrence, but one of the accused was apprehended by Nandoi( i.e. husband of her husband's sister) and other persons. Thereafter, other accused persons arrived there and persuaded the complainant side to leave the accused person with an assurance that the matter will be discussed tomorrow before the Village Panchayat. However, on the next date accused persons refused to participate in the village Panchayat. On the aforesaid allegation, the complaint petition was filed, which was referred to the police for its registration and investigation and police after investigation submitted final form mentioning therein the case as untrue.
3. Sri Jagdish Prasad No.1, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the present complaint petition was filed maliciously and with a view to settle the civil dispute, which was going on in between the petitioners' side and Opp.Party no.2. Learned counsel for the petitioners has further referred to Annexure-2 to the petition, which is a typed copy of an F.I.R. of Bajpatti P.S. Case No.63 of 1999. At the time of argument, learned counsel for the petitioners has also produced certified copy of the F.I.R. of Bajpatti P.S. Case No.63 of 1999, which was registered on the basis of written complaint of Opp.Party no.2/ complainant. In the said F.I.R., all the petitioners and two other persons were made accused. In the said F.I.R., it was disclosed by Opp.Party no.2 that on 22.5.1999(date of occurrence in 4 the present case), while she was trying to cut a Sisam tree, she was stopped by the accused persons and thereafter on the same day she went to Dumra i.e. her parents place ( Naihar) and she left her daughter Rinku Kumari at her house at Bajpatti. When she returned back on 26.5.1999, she was informed by her daughter that the accused persons on the same day, i.e. 22.5.1999 at about 11.00 P.M. intruded into the house of Opp.Party no.2 and looted several articles. It was submitted by Sri Prasad, learned counsel appearing on behalf of petitioners that the content of the F.I.R. shows that on the date of occurrence in the present case, i.e. on 22.5.1999 itself, Opp.Party no.2 had already left Bajpatti to her parents' house at Dumra. Therefore, there was no question to commit rape on the complainant at Bajpatti in the same night on 22.5.1999. Learned counsel for the petitioners has further submitted that falsity of the allegation was proved during the investigation conducted by a statutory Investigating Agency. In the investigation, it was categorically found that the case was instituted falsely with a view settle the civil dispute in between the parties. Learned counsel for the petitioners has further referred to annexure-2 i.e. a copy of the F.I.R. of Bajpatti P.S. Case No.61 of 1999, which was registered on the basis of written report of petitioner no.3, Dhanpat Rai against Opp.Party no.2 and the family members of Opp.Party no.2 on an allegation that they had committed an offence of assault on Dhanpat Rai , who is petitioner no.3 in the present case. On the aforesaid ground, it has been prayed to quash the order of cognizance in view of the fact that that the proceeding 5 against the petitioners was initiated maliciously.
4. Sri Mahendra Thakur, learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioners. He has referred to preliminary objection on the point of maintainability .At the very outset he submits that while hearing a petition under Section 482 of the Code of Criminal Procedure, the court may not interfere with the order of cognizance. It was submitted that at the time of cognizance only requirement for a Magistrate is to examine the materials available on record and for that very purpose even no reason is required to be assigned. It was further submitted that in case of rape, even the statement of prosecutrix is enough for convicting an accused and in the present case, Opp.Party no.2, who is victim, has categorically alleged regarding commission of rape against two of the accused persons, who are petitioner nos.1 and 4. Accordingly, it was argued that on the basis of averments made in the complaint petition itself, the petition is fit to be rejected.
5. Sri Hriday Prasad Singh, learned Addl. Public Prosecutor appearing on behalf of the State on the basis of final form submits that during the investigation it was found that the case was falsely instituted and accordingly final form was submitted on 15.12.1999.
6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. After going through the contents of the complaint petition itself, the Court is satisfied that 6 the allegation appears to be untrue. The manner, as alleged in the complaint petition, shows that the allegation was made in a designed manner. It cannot be comprehended that two persons can commit rape in the manner, as has been alleged in the complaint petition. The Court is refraining to reiterate the averments made in the complaint petition. Besides this, the certified copy of the F.I.R. of Bajpatti P.S. Case No.63 of 1999, which was registered on the basis of written report of Opp.Party no.2, is sufficient to reject the allegation levelled by the complainant regarding commission of rape. Once Opp.Party no.2 in Bajapatti P.S. Case No.63 of 1999 has categorically stated that on 22.5.1999 itself in the day time she had left Bajpatti for her parents house at Dumra and she stayed at Dumra from 22.5.1999 to 25.5.1999, it is beyond imagination that on 22.5.1999 rape could be committed on Opp.Party no.2 at Bajpatti in the night of 22.5.1999. Of course, at the time of hearing a petition filed under Section 482 of the Code of Criminal Procedure, this Court should refrain from looking into the documents, brought on record without being proved through process of law, but in the present case, certified copy of the F.I.R. of Bajpatti P.S. Case No.63 of 1999 was produced before the Court, which has been kept on record. This fact is sufficient to persuade the Court to draw an inference that the present complaint case was initiated against the petitioners maliciously and arbitrarily with a view to settle her civil dispute.
7. Accordingly, the Court is of the view that it is a fit case for exercising inherent jurisdiction in favour of the petitioners 7 and, as such, the order of cognizance dated 14.11.2000 passed in Complaint Case No.C1-170 of 2000, T.R.No.873 of 2000 by Sri Sita Ram Prasad, Judicial Magistrate, 1st Class, Pupari at Sitamarhi is hereby set aside and the petition stands allowed.
( Rakesh Kumar, J) Patna High Court,Patna Dated : 13th August,2010 Nawal Kishore Singh/ N.A.F.R.