Patna High Court
Ajaz Hussain vs State Of Bihar And Anr on 29 March, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.11002 of 2016
Arising Out of PS. Case No.-662 Year-2000 Thana- SIWAN COMPLAINT CASE District-
Siwan
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Ajaz Hussain S/o Id Mohammad resident of village - Andar, Police Station -
Andar, District - Siwan
... ... Petitioner/s
Versus
1. State of Bihar
2. Mahamaddin S/o Late Md. Karim Mia, resident of village +P.O. +P.S.-
Andar, District - Siwan
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Birendra Nath Mishra, Advocate
For the Opposite Party/s : Mr. Navin Kumar Pandey, App
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 29-03-2024
1. Heard learned counsel appearing on behalf of
the parties.
2. The present application has been filed for
quashing the order dated 08.12.2000 passed by learned
Judicial Magistrate, Siwan, in Complaint Case No. 662 of
2000 (Trial No. 4563/2015), where cognizance has been
taken by the learned Jurisdictional Magistrate for the
offences under sections 147/379 of the Indian Penal
Code against all accused persons including petitioner.
3. As per the case of prosecution, on
Patna High Court CR. MISC. No.11002 of 2016 dt.29-03-2024
2/7
27.05.2000
complainant/opposite party no. 2 alleged
that, all 9 (Nine) accused persons stolen the 5 Quintals
and some odd iron rod and 30 bags cement costing Rs.
11,347/- from the Veranda of complainant on
13.05.2000 at about 12:00 O'Clock.
4. In the background of aforesaid factual
allegation, the learned Judicial Magistrate took
cognizance against petitioner and other co-accused
persons for the offence as alleged under Sections
147/379 of the Indian Penal Code vide order dated
08.12.2000 (Trial No.- 4563/2015), which is the
impugned order for present proceedings.
5. Learned counsel appearing for the petitioner
submitted that complainant/opposite party no. 2 is in
inimical term with petitioner and so, opposite party no.
2/complainant filed seven criminal cases against
petitioner. It is submitted that taking note of the conduct
of opposite party no. 2 and all the factual positions
stated thereof, in connection with previous enmities, the
Patna High Court CR. MISC. No.11002 of 2016 dt.29-03-2024
complaint case no. 448/2005 was quashed by this Court
through Cr. Misc. No. 40191 of 2009 vide order dated
13.09.2013. Aforesaid order of the Hon'ble High Court
was challenged by O.P. No. 2 before Hon'ble Apex Court
through SLP (Cr.) No. 905 of 2004 but same was
dismissed. While travelling over the argument, it is
submitted that out of previous enmities and suspicion as
petitioner informed police regarding illegal running of
video-hall of opposite party no. 2 and also his
involvement in theft of official documents from the office
of Circle Officer, Andar, District-Siwan, the present false
case was lodged against petitioner as to pressurize and
harass him with ulterior and oblique motive. It is
pointed out by learned counsel that on bare perusal of
the complaint petition, no prima facie case appears to be
made for the offences, as such, impugned order of
cognizance is fit to be quashed and set aside.
6. Despite service of notice, opposite party no.
2, failed to join the present proceedings.
Patna High Court CR. MISC. No.11002 of 2016 dt.29-03-2024
7. Heard learned APP appearing for the State.
8. It would be apposite to re-produce para 102
of the State of Haryana and Ors. Vs. Bhajan Lal
and Ors., reported in 1992 Supp (1) Supreme Court
Cases 335, which 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 series 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
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 informant report and other materials, if
Patna High Court CR. MISC. No.11002 of 2016 dt.29-03-2024
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 nay 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 persons 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.
(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
Patna High Court CR. MISC. No.11002 of 2016 dt.29-03-2024
spite him due to private and personal
grudge."
9. In view of aforesaid factual and legal
submissions, it appears that the parties are in inimical
terms, where complainant lodged earlier seven criminal
cases against petitioner out of trivial issues as of
present, where more or less the nature of allegation is
similar. It also appears that nature of allegation is
appearing very much general and omnibus and just to
harass with oblique and ulterior motives for the
occurrence of 13.05.2000, the present false case was
lodged on 27.05.2000 in a very planned and formulated
manner, where no overt act appears to be attributed to
petitioner. Hence, by taking guiding note of guideline
nos. 1, 5 & 7 of Bhajan Lal Case (supra), the
impugned order dated 08.12.2000 passed by learned
Judicial Magistrate, Siwan, in Complaint Case No. 662 of
2000 (Trial No. 4563/2015) qua petitioner alongwith all
its consequential proceedings is hereby quashed and set
aside.
Patna High Court CR. MISC. No.11002 of 2016 dt.29-03-2024
10. Accordingly, this application stands allowed.
11. TCR (Trial Court Records), if any, be
returned to learned trial court alongwith the copy of this
judgment.
(Chandra Shekhar Jha, J)
Archana/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 02.04.2024
Transmission Date 02.04.2024
