Patna High Court – Orders
Kamal Kishore @ Nokhan vs The State Of Bihar on 26 June, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.21112 of 2022
Arising Out of PS. Case No.-691 Year-2019 Thana- PATNA COMPLAINT CASE District-
Patna
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1. KAMAL KISHORE @ NOKHAN Son of Jai Prakash Singh Resident of
Village - Manjhouli, P.S.- Salempur, Distt - Patna.
2. Randhir Kumar Son of Late Bindeshwari Singh Resident of Village -
Manjhouli, P.S.- Salempur, Distt - Patna.
3. Vikash Kumar @ Vishal Kumar Son of Rajmani Singh Resident of Village -
Manjhouli, P.S.- Salempur, Distt - Patna.
4. Pawan Kumar Son of Yogendra Prasad @ Anand Kumar Resident of Village
- Manjhouli, P.S.- Salempur, Distt - Patna.
5. Anand Mohan Son of Yogendra Prasad Resident of Village - Manjhouli,
P.S.- Salempur, Distt - Patna.
6. Brajesh Kumar Son of Janardhan Singh Resident of Village - Manjhouli,
P.S.- Salempur, Distt - Patna.
7. Chandan Kumar @ Chundan Kumar Son of Awadhesh Prasad Resident of
Village - Manjhouli, P.S.- Salempur, Distt - Patna.
8. Virash Kumar @ Virap Kumar Son of Rajmani Singh Resident of Village -
Manjhouli, P.S.- Salempur, Distt - Patna.
9. Jaybind Kumar Son of Devendra Singh Resident of Village - Manjhouli,
P.S.- Salempur, Distt - Patna.
10. Subodh Kumar Son of Devendra Singh Resident of Village - Manjhouli,
P.S.- Salempur, Distt - Patna.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Sanjay Prasad Son of Late Rameshwar Singh Resident of Village -
Manjhouli, P.S.- Salimpur, Distt - Patna.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Angad Kunwar, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP
For the O.P. No.2 : Mr. Manoj Kumar Pandey, Advocate
: Ms. Kumari Pallavi, Advocate
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CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
3 26-06-2025
Heard learned counsel for the petitioners, learned
counsel for the State and learned counsel for the opposite party
Patna High Court CR. MISC. No.21112 of 2022(3) dt.26-06-2025
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no.2.
2. This application has been filed for quashing the
order of summoning dated 07.01.2020 & cognizance and
issuance of process dated 17.01.2020 passed in complaint case
no. 691 (c) of 2019 by the Learned Court of Judicial Magistrate,
1st Class, Barh whereby and whereunder the petitioners have
been summoned for the offence punishable under section 323,
341,379,427,504 Indian Penal Code against the 02 accused
persons in vague and order to issue process against the
petitioners.
3. The prosecution case, in brief, is that the accused
persons were co-villagers of the complainant and on the date of
occurrence, all the accused persons armed with lathi danda,
entered into the complainant’s house and starting abusing him.
When the complainant protested against the same, accused
persons gave him lathi blow and they also assaulted the brother
of complainant namely Mukesh Kumar. In the meanwhile,
accused no. 3 namely Vikash Kr. @ Vishal Kumar took away
gold ornament amounting to Rs.16,000/- and accused no. 2
Jaibind Kumar snatched gold chain amounting to Rs. 31,000/-
from the brother of complainant and other accused persons
entered the house of the complainant and damaged articles
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which were kept in the house causing a loss of Rs. 20,000/- to
the complainant.
4. Learned counsel for the petitioners submits that
after filing the complaint case, the complainant was examined
on S.A. and thereafter, three witnesses were produced on behalf
of the complainant who were examined by the learned
Magistrate. The learned Magistrate issued summons vide order
dated 07.01.2020 and took cognizance recording that a prima
facie case is made out against two accused persons but the name
of two accused persons against whom prima facie case has been
found to be true, has not been disclosed.
5. Learned counsel for the petitioner further
submits that the learned Court below, primarily in the order
dated 07.01.2020, has recorded that prima facie case is made
out against two accused persons only but later, in the order dated
17.01.2020, the learned Court below passed an order that prima
facie case is made out against all the accused persons. He
further submits that the learned Court below, despite finding
prima facie case against all the accused persons, issued
summons only against five persons only vide order dated
28.01.2020 and therefore all the orders i.e. order dated
07.01.2020, order dated 17.01.2020 as well as order dated
Patna High Court CR. MISC. No.21112 of 2022(3) dt.26-06-2025
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28.01.2020 are recorded without application of judicial mind in
a mechanical manner.
6. Learned counsel for the petitioners further
submits that the complainant filed a rectification petition before
the learned Magistrate on 17.01.2020 for rectifying and making
correction in the order dated 07.01.2020 and the learned Court
below, on perusal of record, has taken taken cognizance against
all accused persons and rectified the order dated 07.01.2020 as
“ten accused persons be read in place of two accused persons”,
which itself is not permissible as the learned Court below has no
jurisdiction to recall, modify or rectify its own order.
7. Learned counsel for the petitioners further
submits that the petitioners are innocent and have been falsely
implicated in the present complaint case because of the family
dispute between the parties just to wreak vengeance upon the
petitioners.
8. Learned counsel for the petitioners further
submits that the petitioner no. 3 has also filed a case bearing
Salimpur P.S. Case No. 179/19 dated 03.09.2019 against the
complainant and other persons and the present case is a counter
blast to the same case. He further submits that the complainant
and his family members have criminal antecedent also which
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are as follows:-
(i) Salimpur P.S. Case No. 187/2018.
(ii) Salimpur P.S. Case No. 205/18.
9. Learned counsel for the State as well as learned
counsel for the opposite party no.2 have opposed the application
and have submitted that the learned Magistrate has initially
taken cognizance of the offence rightly vide order dated
07.01.2020 and subsequently, made necessary corrections on
17.01.2020.
10. I have heard the submissions of the parties and
have also perused the materials available on record.
11. The second order i.e. order dated 17.01.2020,
in my opinion, is illegal as a criminal Court cannot review its
earlier order. So far as the order taking cognizance dated
07.01.2020 is concerned, it appears that the present complaint
has been filed malafidely by the complainant as a counter blast
to Salimpur P.S. Case No. 179 of 2019 which has been filed
earlier and therefore this kind of malafide prosecution cannot be
allowed to continue.
12. The Hon’ble Supreme Court in the case of
State of Haryana & Ors. Versus Bhajan Lal & Ors. reported in
1992 Supp (1) SCC 335, has enumerated the categories under
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which the quashing application may be allowed. It will be
relevant to quote paragraph no.102 of the aforesaid decision
which reads as under:
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
14 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 channelized and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such a power should be
exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at the face value and accepted in their
entirety do not prima facie constitute any
offence or make out a case again the accused.
(2) Where the allegations in the first information
report and other materials, if any,
accompanying the F.I.R. 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
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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;
(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.”
13. In view of the law laid down in the case of
State of Haryana & Ors. Versus Bhajan Lal & Ors. (Supra),
this application is allowed.
14. Accordingly, the summoning order dated
07.01.2020 and cognizance and issuance of process order dated
17.01.2020 passed by the by the learned Judicial Magistrate 1 st
Class, Barh, in connection with Complaint Case No.
691(C)/2019 are hereby quashed.
(Sandeep Kumar, J)
Anand/-
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