Patna High Court
Rita Devi And Ors vs State Of Bihar And Anr on 8 May, 2019
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No. 33728 of 2016
Arising Out of Complaint Case No.-01 Year-2012 Thana- SARAN COMPLAINT CASE
District- Saran
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1. Rita Devi D/o Mutukdhari Rai R/o Village-Basantpur, P.O + P.S-Dighwara,
District-Saran.
2. Mutukdhari Rai S/o Late Laldhari Rai R/o Village-Basantpur, P.O + P.S-
Dighwara, District-Saran.
3. Vikram Pratap Yadav S/o Mutukdhari Rai, R/o Village Basantpur, P.O. + P.S.
- Dighwara, District -Saran.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Shyam Prakash Singh S/o Late Shivanand Singh R/o Village - Paharichak,
P.O. + P.S. - Sonepur, District - Saran.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Shiv Shankar Prasad Yadav and
Mr. Arbind Kumar Sinha, Advocates
For the Opposite Party/s : Mr. Kamlesh Kumar Pathak, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN
AMANULLAH
ORAL JUDGMENT
Date : 08-05-2019
Heard learned counsel for the petitioners; learned APP
for the State and learned counsel for the opposite party no. 2.
2. The petitioners have moved the Court under Section
482 of the Code of Criminal Procedure, 1973 for the following
relief:
"That through the present application, the
petitioners are seeking the quashing of the order
dated 20.04.2012 passed in the Tr. No. 1965/2012
arisen out of the complaint case No. 01/2012 by the
Railway Judicial Magistrate at Sonepur, Saran
Patna High Court CR. MISC. No.33728 of 2016 dt.08-05-2019
2/10
whereby and whereunder the a cognizance U/S
341/323/379/506and 34 of the I.P.C. has been taken against them and they are aggrieved, so the present application has been preferred to this Hon'ble Court, vide the order dated 20.04.2012 i.e. under challenged as an annexure"
3. The allegation against the petitioners in Complaint Case No. 01 of 2012 filed on 05.01.2012, by the opposite party no. 2 before the Railway Judicial Magistrate at Sonepur is of snatching wrist watch worth Rs. 3,000/- and Rs. 20,000/- cash at gun point.
4. Learned counsel for the petitioners submitted that the petitioner no. 1's husband, is a man of easy virtues and was selling away his portion of the joint family property without taking care of either the petitioner no. 1 or his three children and, thus, to prevent such action of her husband, the petitioner no. 1 has filed Title Partition Suit No. 629 of 2011, which is pending before the Sub-Judge, Saran, Chapra against the mother of opposite party no.
2 and others. It was submitted that the petitioner no. 1's husband has sold some land in favour of the mother of the opposite party no. 2. Learned counsel submitted that the opposite party no. 2, in order to exert undue pressure on the petitioners has filed this patently false case. It was further submitted that the allegations cannot be believed that at 09.00 O'clock in the night a woman would be waiting by laying a trap for the opposite party no. 2 and Patna High Court CR. MISC. No.33728 of 2016 dt.08-05-2019 3/10 that they would also have country made pistol in their hand. Moreover, it was submitted that in the background of there being a land dispute between the parties, the present case is clearly an abuse of the process of the Court.
5. It was further submitted that the trouble for the petitioners started by filing of Title Partition Suit No. 629 of 2011 by which the opposite party no. 2, by exerting undue influence on the husband of the petitioner no. 1 had got ancestral land of the opposite party no. 2 transferred in favour of his mother which was totally illegal as the minor children of the petitioner no. 1 also had the right and title in such ancestral property as there had not been partition between the co-parceners. Learned counsel submitted that the opposite party no. 2 has also filed Sonepur PS Case No. 433 of 2012 on 10.04.2012, against the petitioner no. 1 in which the allegation is that she along with few other unnamed accused persons entered the house of the opposite party no. 2 and snatched two fiber chairs costing Rs. 800/- and iron rods costing Rs. 2,000/-. It was submitted that the opposite party no. 2 is misusing his position as an advocate practicing in the Court of the Railway Judicial Magistrate, Sonepur and repeatedly filing cases, all after filing of Title Partition Suit No. 629 of 2011 on 22.11.2011 by the petitioner no. 1. Learned counsel submitted that in the background Patna High Court CR. MISC. No.33728 of 2016 dt.08-05-2019 4/10 of such dispute where the opposite party no. 2 is repeatedly filing criminal cases and that too of frivolous nature with the allegation that any prudent man would not believe and the same being highly improbable in the peculiar facts and circumstances of the case, where the father of the petitioner no. 1, that is, petitioner no. 2, being aged almost 80 years cannot be expected to keep waiting at 9 O' clock at night for the opposite party no. 2 and then at gun point snatch Rs. 20,000/- cash and wrist watch. It was further submitted that even the allegation in Sonepur PS Case No. 433 of 2012 of stealing two fiber chairs worth Rs. 800/- and iron rods worth Rs. 2,000/-, is both unbelievable and also absurd. It was submitted that it cannot be believed that the petitioner no. 1, being a lady, would forcibly take away two chairs and iron rods worth Rs. 2800/- from the house of the person who is her next door neighbour and against whom she is fighting litigation and who is also a practicing Advocate in the Court of the Railway Judicial Magistrate, Sonepur.
6. Learned APP submitted that though cognizance has been taken against the petitioners, which is under challenge in the present application, on the basis of materials before the Court, but taking an overall view of the matter in the background of the facts, the case itself appears to be motivated with the purpose of Patna High Court CR. MISC. No.33728 of 2016 dt.08-05-2019 5/10 exerting undue pressure on the petitioner no. 1 in the Title Partition Suit filed by her and in which the mother of the opposite party no. 2, in favour of whom the husband of the petitioner no. 1 had transferred some ancestral property, is a defendant.
7. Learned counsel for the opposite party no. 2 submitted that the petitioners has not shown to the Court that from the complaint and the evidence recorded by the Court of the complainant, no criminal offence is made out. It was further submitted that the petitioners should rather cooperate in the trial and get the same concluded.
8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that a case for interference has been made out.
9. As has rightly been submitted by learned counsel for the petitioners, the picture which emerges leaves no doubt in the mind of the Court that the opposite party no. 2 is trying to wreak vengeance against the petitioners, especially petitioner no. 1 and targeting her family members i.e., the father and brother also. It is not denied that the petitioner no. 1 has filed Title Partition Suit No. 629 of 2011, prior to initiation of all criminal proceedings against the petitioner no. 1 by the opposite party no. 2. It is also not denied that in the said Title Partition Suit, the mother of the Patna High Court CR. MISC. No.33728 of 2016 dt.08-05-2019 6/10 opposite party no. 2, in whose favour the husband of the petitioner no. 1 has transferred some ancestral land has been made a defendant. Thus, in such view of the matter, there is a clear connection between filing of the Title Partition Suit by the petitioner no. 1 and the filing of various cases by the opposite party no. 2, against the petitioner no. 1 and her family members.
10. Moreover, as has been pointed out by learned counsel for the petitioners, the allegation appears to be improbable and in fact, unbelievable inasmuch as, at the cost of repetition, it cannot be believed that the petitioners at 9.00 O' clock at night would keep waiting for the opposite party no. 2 and at gun point would snatch Rs. 20,000/- and a wrist watch knowing fully well the position of the opposite party no. 2 and also that they would be identified, as it has not been alleged that the petitioners had done anything to hide their identity. Thus, such an allegation against a known person, that too, a next door neighbour, and further with whom there is already prior civil litigation relating to land, the allegation of snatching of Rs. 20,000/- and wrist watch, in the opinion of the Court is not fit to be believed. Another reason why the Court is of the opinion that the allegations made are not fit to be relied upon is that the opposite party no. 2, who is a practicing Advocate in the local Court of the Railway Judicial Magistrate, Patna High Court CR. MISC. No.33728 of 2016 dt.08-05-2019 7/10 Sonepur, would be turned away by the police and FIR would not be registered, appears to be palpably improbable. The opposite party no. 2, being a legal practitioner is expected to be aware of the provisions of law where he had to inform the Superintendent of Police if the local police station had refused to accept the complaint by him. This also is a pointer that the opposite party no. 2 wanted to file a complaint case where he would guide the proceeding in the manner he desires and also that no independent agency, much less, the police should investigate so as to reveal the truth. Further, for a lesser offence, he seems to have had no problem in lodging of a police case, i.e., Sonepur PS Case No. 433 of 2012.
11. The Hon'ble Supreme Court in State of Haryana vs. Bhajan Lal reported as 1992 Supp (1) SCC 335, at paragraph no. 102 has enumerated situations where the Court would exercise its inherent power under Section 482 of the Code. The same reads as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a serious of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure Patna High Court CR. MISC. No.33728 of 2016 dt.08-05-2019 8/10 the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value 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 FIR 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 FIR 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 prudent 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.
Patna High Court CR. MISC. No.33728 of 2016 dt.08-05-2019 9/10 (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is 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."
12. The present case, in the opinion of the Court, is covered under categories 5 and 7 of the aforesaid decision in Bhajan Lal (supra) at paragraph no. 102.
13. Further, the Hon'ble Supreme Court in State of Karnataka v. L. Muniswamy reported as (1977) 2 SCC 699, at paragraph no. 7, has observed as under:
"7. .........In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice......"
14. In view of the aforesaid, the Court finds that the present case is mala fide, filed for the purpose of wreaking vengeance and intended to harass the petitioners and, thus, an abuse of the process of the Court.
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15. Accordingly, the application is allowed. The entire criminal proceeding arising out of Complaint Case No. 1 of 2012 (TR No. 1965 of 2012), pending before the Court below at Sonepur, including the order dated 20.04.2012, by which cognizance has been taken, as far as it relates to the petitioners, stands quashed.
(Ahsanuddin Amanullah, J.) P. Kumar AFR/NAFR U T