Patna High Court – Orders
Pravin Kumar Jha vs The State Of Bihar on 21 March, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.35133 of 2021
Arising Out of PS. Case No.- Year-0 Thana- District- Purnia
======================================================
PRAVIN KUMAR JHA Son of Late Baldeo Jha Resident of Mohalla Sipahi
Tola, Chunapur Road, P.S. K.Hat (Top Madhubani), Purnea, District - Purnea.
... ... Petitioner/s
Versus
1. THE STATE OF BIHAR
2. Ajay Kumar Singh Son of Shree Fuleshwar Singh Resident of Village -
Paigparh, P.S. Bhargama District Araria at Present residing at Mohalla
Keshav Nagar, Chunapur Road, P.S. K.Hat District Purnea.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Giridhar Gopal Tiwary
For the Opposite Party/s : Mr. Jharkhandi Upadhyay
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
5 21-03-2025
Heard the learned counsel for the petitioner, the
learned counsel appearing on behalf of the State as well as the
learned counsel for the opposite party No. 2.
2. The present application under section 482 of the
Code of Criminal Procedure is preferred for quashing the order
dated 21.9.2019 passed by the A.C.J.M – I, Purnea in complaint
case bearing C.A. No. 838 of 2016 whereby the Court has taken
cognizance under sections 427, 323, 504, 385 read with section
34 of the Indian Penal Code against the petitioner and his
daughter, who is a Non-resident Indian (NRI) and subsequently
the Court had issued summons.
3. The present case emanates from a complaint
petition dated 10.05.2016 (Annexure P-4), preferred by the
opposite party no. 2 / Complainant, filed before the Court of
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
2/21
C.J.M, Purnea. In the aforesaid complaint it is alleged that the
Complainant came into possession of a plot admeasuring 1
katha 10 dhurs of land vide sale deed no. 2893, dated
15.02.2012 from one Swarna Lata Devi. The aforesaid land was
purchased in the name of the wife of the Complainant. It is
further stated in the complaint petition that subsequent to the
purchase, the mutation was carried in favour of the wife of the
complainant and thereafter two rooms with asbestos roof were
constructed and the son of the complainant who is a student was
living thereon since the complainant and his wife were residing
in Delhi where the Complainant was working as a private guard.
It was further alleged that the present petitioner who has been
arrayed as accused no.1 in the aforesaid complaint had misused
his official position being an officer of the Bihar Administrative
Service to initiate proceedings under section 144 Cr.P.C. in
order to disturb the peaceful possession of the Complainant. It is
thereafter stated that the aforesaid proceeding was challenged
before the learned Sessions Court, Purnea invoking revisional
jurisdiction, however it is further stated that since the statutory
limitation had expired after lapse of two months therefore the
challenge had become infructuous. Next it was submitted in the
Complaint that the original owner of the property described at
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
3/21
paragraph-1 of the complaint was one Ramesh Bhagat, who had
sold his property to multiple purchasers, and the complainant
had also purchased the aforesaid plot of land from one such
purchaser. Thereafter, it is stated that in the year 2013 a
Mediation (panchaiti) was conducted to ascertain the correct
measurement and status of the land, wherein the claim of the
complainant was found correct and the land as claimed by the
accused no.2 was found to be on the private way as demarcated
by the original land owner. It is alleged that suddenly in the first
week of May-2016 the two accused started to threaten the son of
the complainant and started to take possession of the land by use
of force. It is alleged that on the date of occurrence, the
complainant along with his family members was in his house
when suddenly the two accused persons along with 5-6 persons
came to the house of the complainant and started to abuse and
threaten the complainant. Upon resisting, it is alleged that the
accused no. 1/petitioner ordered the accompanying persons to
assault the complainant. It is thereafter alleged that when the
wife of the complainant intervened to save the complainant, the
accused no.2 pulled the hair of the wife of the complainant and
abused and threatened her with dire consequences if they
refused to vacate the land. It is thereafter stated that upon
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
4/21
hearing the commotion, people assembled. In the meanwhile, it
is alleged that the accused no.1 entered the house of the
complainant and started to throw the belongings, which was
protested by the people who had assembled there. It is further
alleged that the accused no.1/petitioner threatened the
complainant to either vacate the said land in question or
demanded rupees ten lakhs in lieu thereof. Thereafter it is stated
that the complainant went to the jurisdictional police station
along with his family, however the police refused to register the
F.I.R. and therefore the complainant was constrained to prefer
the present complaint.
4. The learned counsel for the petitioner submits that
the entire prosecution story is false and fabricated. It is
submitted that the complainant has impleaded the daughter of
the instant petitioner namely Reena Kumari and has attributed
overt act on her part on the date of occurrence i.e. in the first
week of May 2016 as described in paragraph-7 and 8 of the
complaint petition, dated 10.05.2016. However, it is submitted
that the aforesaid Reena Kumari was not present in India during
the aforesaid period since she was living in U.S.A.
5. The learned counsel for the petitioner has next
submitted that there is a discrepancy with regard to the date of
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
5/21
occurrence itself, the date of occurrence mentioned on the first
page of the complaint is 08.04.2016 at 5 P.M. whereas in
paragraph-7 of the complaint the complainant categorically
mentioned that in the first week of May 2016, the petitioner and
his daughter committed the offence as alleged. None of the
witnesses have stated anything regarding any incident in the
first week of May 2016. It is also submitted by the learned
counsel for the petitioner that the complainant had concealed the
fact from the Court while filing the aforesaid complaint dated
10.05.2016 that he is an accused in the K. Hat P.S. case No. 36
of 2016 lodged by the present petitioner on 27.01.2016 under
sections 447, 379, 384, 427, 120B, 506 read with section 34 of
the I.P.C which pertained to the same plot on which the
complainant is claiming his illegal possession. It was further
highlighted that the complainant had filed his appearance in K.
Hat P.S. Case No. 36 of 2016 on 10.05.2016, i.e., on the very
date that the complainant preferred to lodge this present
complaint, therefore it is submitted that the institution of the
present complaint is nothing more than a counter blast of the
case lodged against the complainant by the petitioner much
prior in time.
6. It is thereafter submitted by the learned counsel for
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
6/21
the petitioner that all the witnesses of the alleged occurrence are
interested parties and no independent witnesses have been
examined. The witness No. 1 is the son of complainant, the
witness no. 2 is the nephew (bhanja), the witness no. 3 is the
brother-in-law (sala) and the witness no. 4 is the wife of the
complainant. It is the submission of the counsel for the
petitioner that the witnesses have only made stereotypical
statement relating to the alleged occurrence. There are no
independent witness even though the complainant has claimed
that a number of persons had gathered and witnessed the
occurrence before the accused persons left the place.
7. It is further submitted that the wife of the
complainant has got no right, title or interest on the land
purchased by the daughter of the petitioner and furthermore, the
claim of the wife of the complainant on the basis of a
subsequent sale deed executed by a third party who had
purchased a portion of land in the same plot from the vendor of
the petitioner does not confer her any claim over the land
purchased by the daughter of this petitioner since, it is submitted
that the boundary of the land mentioned on the sale deed
executed by the wife of the complainant does not tally with the
boundary of the land of the daughter of the petitioner. The
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
7/21
learned counsel for the petitioner had then proceeded to mention
the boundary (chauhaddi) in the the sale deed of wife of the
complainant wherein it is mentioned that the type of the land as
‘residential private road’ category with the boundary of her land
as North – Anupam Chaubey, South – Ramesh Bhagat, East –
Ramesh Bhagat and West – Private Road 10 feet. It is submitted
that the boundary of the land of the daughter of this petitioner is
North – Swarnlata Devi, South – Krishna Deo Pathak, East –
Nityanand Singh and West – 10 feet wide private road.
8. The learned counsel for the Petitioner thereafter
has submitted that the falsity of the complainant is further
illustrated by his own statement in paragraph-3 of the complaint
that he challenged the order passed in case No. 872M/2013
under 144 Cr. P.C. lodged by the petitioner in 2013 before the
Court of District & Sessions Judge whereas it is submitted that
the correct fact is that Cr. Revision No.483 of 13 was filed by a
dummy of the complainant namely Krishna Kumar Singh which
was dismissed by the learned Court.
9. Learned counsel for the petitioner has submitted
that the correct factual position is that the land purchased by the
daughter of the petitioner fell in the share of her vendor Ramesh
Bhagat in partition dated 14.06.2006 among the brothers. The
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
8/21
land allotted to Ramesh Bhagat was mutated vide Mutation
Case No.105/07-08 and thereafter Jamabandi No. 4019 was
created in his name. it is further submitted that after verifying
the right, title and possession of the vendor, the daughter of the
petitioner purchased 4 kathas of land from the aforesaid Ramesh
Bhagat vide sale deed dated 29.11.2010.
10. It is submitted that after purchase of the land the
daughter of the petitioner came in peaceful possession of the
aforesaid land and subsequently got the same mutated in her
favour vide Mutation case No.7102/11-12 and a new Jamabandi
bearing No. 6409 was created in her name.
11. Learned counsel appearing on behalf of the
petitioner has further submitted that all of a sudden, in October
of 2013 the complainant came to the plot belonging to the
daughter of the petitioner along with some goons and labours
and started to cut some of the bamboos standing on the plot of
land claiming right over the land. It is further submitted that
when this fact came to the knowledge of the family of the
petitioner, the wife of the petitioner namely Punam Jha lodged a
complaint before the S.D.M, Purnea for restraining the
complainant from creating disturbance on the plot.
12. It is submitted that on the basis of the
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
9/21
aforementioned complaint filed by the wife of the petitioner, the
S.D.M had ordered an enquiry by an Executive Magistrate who
submitted his report on 24.10.2013 and on the basis of the
aforesaid report the S.D.M, Purnea initiated proceeding under
section 144 Cr. P.C. and issued notices to the parties. The
petitioner appeared before the S.D.M, Purnea and filed his reply.
Thereafter, it is submitted that, instead of contesting the matter
before the S.D.M, the complainant in order to scuttle the order
of the S.D.M filed a revision application through one Krishna
Kumar Singh, who is, according to the petitiioner, the
henchman of the complainant/opposite party No. 2, which was
subsequently dismissed vide order dated 17.01.2014.
13. It is next submitted that in the meanwhile the
petitioner filed a petition before the S.D.M, Purnea for initiating
proceeding under section 145 of Cr. P.C. for the declaration of
possession of Reena Kumari over the plot in question which was
registered as Case No. 406P of 2013 dated 26.10.2013 and was
sent to P.S. – K. Hat for enquiry which appears to be pending till
date. It is further submitted that when the petitioner heard that
some conspiracy was being hatched to dispossess his daughter
from a part of her land, the petitioner filed another petition
before the S.D.M, Purnea for initiating section 145 proceeding
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
10/21
which was again numbered as 211P of 2015 which too, was sent
for enquiry to the jurisdictional police on 20.8.2015 but even
that appears to be still pending.
14. Learned counsel for the petitioner has next submitted
that on 02.12.2015, the complainant/O.P. no.2 with the help of
some anti-social elements committed trespass on the plot
belonging to the daughter of the petitioner and also had cut
down bamboo pieces, removed concrete pillars and constructed
a brick wall and tin shade in the north west part of the plot in
order to dispossess the daughter of the petitioner. It is further
submitted that the petitioner could know about the incident only
belatedly since nobody was ready to inform regarding the
incident immediately and the petitioner was posted at Chapra at
the time. Upon learning the same, the petitioner came to Purnea
and filed a written report in the K. Hat Police Station on
27.01.2016 regarding the incident mentioning therein inter alia
that his daughter is living in U.S.A. and he is the holder of the
power of attorney. The Police registered a formal FIR bearing
K. Hat P.S. case No. 36 of 2016 U/s 447, 379, 384, 427, 120(B),
506 read with section 34 of the I.P.C. against the accused Ajay
Singh, O.P. no.2, the present complainant and also against
Ramesh Bhagat.
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
11/21
15. The learned counsel has also submitted that the O.P.
no. 02 was enlarged on anticipatory bail by this Court vide order
dated 05.10.16 passed in Cr. Misc. No. 40923 of 2016 and had
subsequently surrendered before the C.J.M, Purnea on
24.10.2016. It is submitted that the Police had submitted charge
sheet and thereafter cognizance of offence was taken on
28.3.2017 under sections 447, 379, 384, 427, 506 of the I.P.C.
and summons were issued. However since, the aforesaid Ajay
Kumar Singh, instant O.P. no.2, who was accused therein,
remained absent on 28.6.17, 30.8.17, 9.10.17 and 20.12.17, the
Court below had issued bailable warrant of arrest against him,
eventually the O.P. no.2 finally appeared on 21.3.2018. It is also
submitted that since the O.P. no.2 subsequently again failed to
appear, his bail bond was cancelled vide order dated 18.02.2019
and NBW was issued. On 19.03.19, the O.P.no.2 was granted
conditional bail by the learned Court below.
16. Learned counsel for the petitioner submitted that the
Magistrate had framed charge against the said Ajay Kumar
Singh, O.P. no.2, vide order dated 28.03.2019 under sections
447, 379, 384, 427 read with section 506 of the I.P.C. and the
trial had commenced but was delayed due to COVID-19
pandemic.
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
12/21
17. It is vehemently argued by the learned counsel for the
petitioner that in order to create a defence, the Complainant/O.P.
no.2 had concocted a fabricated and false story against the
petitioner and his daughter who is a Non-resident Indian and
preferred to file a complaint case before the Court of C.J.M.,
Purnea on 10.5.2016, which was the same date on which the
complainant/O.P. no.2 filed his appearance in K. Hat P.S. Case
No. 36 of 16. It is argued that the discrepancy regarding the date
of occurrence as evidently mentioned on the first page of the
complaint and at paragraph 7 and 8 of the complaint petition
illustrate the concoction and false character of the complaint. It
is further reiterated and emphasised by the learned counsel for
the petitioner that no independent witnesses were produced and
all the witnesses examined on behalf of the complainant, who
are all the relatives of the complainant, have stated the date of
occurrence as 08.04.2016 and none of them have even
whispered about the alleged incident taking place in the first
week of May 2016. Therefore, it is contended by the learned
counsel for the petitioner that none of the witnesses could have
bern an eye witness to the occurrence and have therefore given
false evidence for which they are liable to be prosecuted.
18. It is argued that the inability of the complainant to
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
13/21
even produce a single independent witness although the stand of
the complainant is that a number of persons had gathered and
witnessed the occurrence further casts serious doubts on the
genuineness of the complaint. The learned counsel has also
pointed that it took over 17 months for the Complainant to
examine his witnesses, i.e., from 22.3.17 to 19.10.18 even when
all the witnesses were his relatives.
19. The learned counsel for the petitioner has also
pointed that the falsity and malafide nature of the present
complaint petition is evident from the very fact that the daughter
of the petitioner who has been arrayed as accused no.2 in the
complaint petition was not even present in India on the alleged
date of occurrence. It is submitted that Reena Kumari, the
daughter of the petitioner had left India for U.S.A on 18.08.2012
and had returned on 1.6.2015; thereafter she again left India for
U.S.A on 11.07.2015 and came to India on 19.11.15; again she
left India for U.S.A on 01.12.2015 and came back to India only
on 13.11.2017, that is after the alleged date of occurrence and
had again left for USA on 03.12.2017 and since then she has
been staying there continuously which, it is submitted, is
evident from the perusal of the copy of the passport/ VISA of
Reena Kumari in which entries are made upon entry and
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
14/21
departure. It is emphasised by the learned counsel for the
petitioner that the entries on the passport are conclusive proof of
the entry and exit of any Indian from the country. In the present
case the action of the complainant in implicating the daughter of
the petitioner vitiates and voids the entire prosecution case.
20. Learned counsel for the petitioner has further argued
that the learned Additional Chief Judicial Magistrate failed to
appreciate the contradiction in the averments/statements and the
evidence of the witnesses and took cognizance of the offence as
alleged and issued summons in a mechanical manner. The
Magistrate ought not to have taken cognizance against the
daughter of the petitioner who is not even residing in India. It is
further argued that there is no evidence on record to show that
the petitioner was present at the place of occurrence since he
was posted at Chapra on the relevant date. It is lastly submitted
that the petitioner had to face the rigors of criminal trial based
on a false and concocted story. It is submitted that the petitioner
appeared and was enlarged on bail by the learned A.C.J.M-I,
Purnea vide order dated 05.06.20.
21. Learned counsel for the State and learned counsel
for the opposite party No. 2 have supported the impugned order.
22. Mr. Ajit Kumar Singh, learned counsel for the
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
15/21
opposite party No. 2 has submitted that the co-accused Reena
Kumari has been continuously entering and leaving the country
multiple times and the accused was in fact present on the spot
and had committed the occurrence as alleged in the complaint.
23. I have considered the submissions of the parties and
perused the materials on record.
24. From the records it appears that on the alleged date of
occurrence, the opposite party no. 2 was not present in the
country and was in the United States.
25. The details of the case given by the complainant i.e.
the date of occurrence is said to be in the 1st week of May, 2016
whereas the same has been given as 08.04.2016 on the first page
of the complaint petition filed before the Court of C.J.M,
Purnea. The present complaint which was filed on 10.05.2016
appears to be a counter blast case preferred by the complainant
in retaliation to the K. Haat P.S. Case 36 of 2016 dated
27.01.2016 lodged by the petitioner against the complainant.
There is admittedly an ongoing land dispute case between the
parties which is the nucleus of the entire case.
26. The present complaint case appears to be a malafide
prosecution instituted because of the ensuing land dispute
between the parties.
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
16/21
27. The order taking cognizance is also cryptic and non-
speaking.
28. The Hon’ble Supreme Court in the case of Pepsi
Foods Ltd. v. Special Judicial Magistrate reported in (1998) 5
SCC 749, has held as follows:-
“Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion as a
matter of course. It is not that the complainant has to bring
only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The
order of the Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the case and the
law applicable thereto. He has to examine the nature of
allegations made in the complaint and the evidence both
oral and documentary in support thereof and would that be
sufficient for the complainant to succeed in bringing charge
on to the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary evidence
before summoning of the accused. The Magistrate has to
carefully scrutinize the evidence brought on record and may
even himself put questions to the complainant and his
witnesses to elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any offence is
prima facie committed by all or any of the accused.”
29. The Hon’ble Supreme Court in the case of Delhi
Race Club (1940) Ltd. v. State of U.P. reported in (2024) 10
SCC 690 has held as under:
“30. The aforesaid aspect could be said to have
been completely lost sight of by the High Court, while
rejecting the application filed by the appellant herein under
Section 482CrPC, seeking quashing of the summoning
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
17/21
order.
31. In Mehmood Ul Rehman v. Khazir
Mohammad Tunda [Mehmood Ul Rehman v. Khazir
Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1
SCC (Cri) 124] , this Court held thus : (SCC p. 430,
para 22)
“22. … The satisfaction on the
ground for proceeding would mean that the
facts alleged in the complaint would
constitute an offence, and when considered
along with the statements recorded, would,
prima facie, make the accused answerable
before the court. … In other words, the
Magistrate is not to act as a post office in
taking cognizance of each and every
complaint filed before him and issue process
as a matter of course. There must be
sufficient indication in the order passed by
the Magistrate that he is satisfied that the
allegations in the complaint constitute an
offence and when considered along with the
statements recorded and the result of inquiry
or report of investigation under Section 202
CrPC, if any, the accused is answerable
before the criminal court, there is ground for
proceeding against the accused under
Section 204 CrPC, by issuing process for
appearance. Application of mind is best
demonstrated by disclosure of mind on the
satisfaction. … To be called to appear before
the criminal court as an accused is serious
matter affecting one’s dignity, self-respect
and image in society. Hence, the process of
criminal court shall not be made a weapon
of harassment.” (emphasis supplied)
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
18/21
32. The principle of law discernible
from the aforesaid decision is that issuance
of summons is a serious matter and,
therefore, should not be done mechanically
and it should be done only upon satisfaction
on the ground for proceeding further in the
matter against a person concerned based on
the materials collected during the inquiry.
30. The Hon’ble Supreme Court in the case of A.M.
Mohan v. The State Represented by SHO and Another reported
as [2024] 3 S.C.R. 722 = 2024 SCC OnLine SC 339 has
succinctly laid down the principles for exercise of inherent
powers under section 482 Cr.P.C as follows –
“9. The law with regard to exercise of jurisdiction under
Section 482 of Cr. P.C. to quash complaints and criminal
proceedings has been succinctly summarized by this Court
in the case of Indian Oil Corporation v. NEPC India
Limited (2006) Suppl. 3 SCR 704, after considering the
earlier precedents. It will be apposite to refer to the
following observations of this Court in the said case, which
read thus:
“12. The principles relating to exercise of
jurisdiction under Section 482 of the Code of
Criminal Procedure to quash complaints and
criminal proceedings have been stated and
reiterated by this Court in several decisions. To
mention a few —Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre [(1988) 1 SCC
692 : 1988 SCC (Cri) 234], State of Haryana v.
Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC
(Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh
Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059],
Central Bureau of Investigation v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri)
1045], State of Bihar v. Rajendra Agrawalla [(1996)
8 SCC 164 : 1996 SCC (Cri) 628], Rajesh Bajaj v.
State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC
(Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v.
Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC
(Cri) 615], Hridaya Ranjan Prasad Verma v. State
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
19/21of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786],
M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 :
2002 SCC (Cri) 19] and Zandu Pharmaceutical
Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC
122 : 2005 SCC (Cri) 283]. The principles, relevant
to our purpose are:
1. A complaint can be quashed where the
allegations made in 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 the case
alleged against the accused. For this
purpose, the complaint has to be examined
as a whole, but without examining the merits
of the allegations. Neither a detailed inquiry
nor a meticulous analysis of the material nor
an assessment of the reliability or
genuineness of the allegations in the
complaint, is warranted while examining
prayer for quashing of a complaint
2. A complaint may also be quashed where it
is a clear abuse of the process of the court,
as when the criminal proceeding is found to
have been initiated with mala fides/malice
for wreaking vengeance or to cause harm, or
where the allegations are absurd and
inherently improbable.
3. The power to quash shall not, however, be
used to stifle or scuttle a legitimate
prosecution. The power should be used
sparingly and with abundant caution.
4. The complaint is not required to verbatim
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation
is laid in the complaint, merely on the
ground that a few ingredients have not been
stated in detail, the proceedings should not
be quashed. Quashing of the complaint is
warranted only where the complaint is so
bereft of even the basic facts which are
absolutely necessary for making out the
offence.
5. A given set of facts may make out : (a)
purely a civil wrong; or (b) purely a criminal
offence; or (c) a civil wrong as also a
criminal offence. A commercial transaction
or a contractual dispute, apart from
furnishing a cause of action for seeking
remedy in civil law, may also involve a
criminal offence. As the nature and scope of
a civil proceeding are different from a
criminal proceeding, the mere fact that the
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
20/21complaint relates to a commercial
transaction or breach of contract, for which
a civil remedy is available or has been
availed, is not by itself a ground to quash the
criminal proceedings. The test is whether the
allegations in the complaint disclose a
criminal offence or not.”
31. The Magistrate without application of judicial mind
has mechanically taken cognizance and issued process against
the accused persons in a false and fabricated case instituted in
the backdrop of an ongoing land dispute between the parties.
The complaint is preferred as a counterblast in order to wreak
vengeance in retaliation to the earlier criminal case instituted by
the petitioner wherein the daughter who is a non-resident Indian
was arrayed as an accused when she was not in the Country
much less at the place of occurrence.
32. Therefore, in view of the discussions above and in
view of the law laid down by the Hon’ble Supreme Court in the
Pepsi Foods Ltd. (supra), Delhi Race Club (1940) Ltd. (supra),
the impugned order is unsustainable for its cryptic and
mechanical character. In view of the law laid down in A. M.
Mohan (Supra) for exercise of inherent powers of this Court
under section 482 Cr.P.C., since the present prosecution appears
to be mala fide therefore the present prosecution could not be
sustained and is therefore for the foregoing reasons,
unsustainable. This application is allowed.
Patna High Court CR. MISC. No.35133 of 2021(5) dt.21-03-2025
21/21
33. Accordingly, the impugned order taking cognizance
dated 21.09.2019 passed by the A.C.J.M.-I, Purnea in C.A. No.
838 of 2016 is hereby quashed and set aside along with the
entire complaint case C.A. 838 of 2016 against both the accused
persons therein.
(Sandeep Kumar, J)
Saif/-
U T
[ad_1]
Source link