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Judgment
Heard the parties.
This is an application for quashing of the order dated 03.04.2018 passed in Sasaram (M) P.S Case No. 672 of 2016 by C.J.M., Rohtas at Sasaram, whereby learned jurisdictional magistrate has taken cognizance under Sections 341, 323, 382, 406, 420 and 504 of I.P.C against petitioner.
The instant case appears to have been lodged on the basis of a complaint alleging interalia that the complainant and the brother of the petitioner were on friendly term, and on 17.05.2015 at about 10.00 A.M., accused persons and father of the accused no. 1 and 2 came to the house of the complainant, and asked him to arrange Rs. 7.5 lakhs, and they also said that a land has been mortgaged with a person, who is now pressuring to refund the amount. It is further alleged that the complainant told them to make arrangement within 2-4 days. The complainant managed the amount on interest and informed the accused persons and accordingly on 23.05.2015, accused persons and the father of the accused no. 1 and 2 came to the house of the complainant, and received Rs. 7.30 lakhs on stamp paper in front of the witnesses, and late Sunil Kumar Mishra signed on the agreement paper and all the accused persons gave consent and they assured to refund the amount by 31.12.2015 or to get the land registered. It is further alleged that when the accused persons did not return the amount, the complainant went to the house of the accused persons to take the money, then the accused persons handed over a cheque to the complainant signed by late Sunil Kumar Mishra and when the cheque was deposited in the account, it could not encashed. In the meantime Sunil Kumar Mishra died on 21.01.2016 in suspected condition, and thereafter on 15.04.2016 when the complainant demanded the money, the accused persons refused to pay and the accused no. 3(petitioner) took out the pistol and put it on the complainant and further the accused no. 1 snatched the golden chain and the accused no. 2 snatched the timex watch of the complainant. It is further stated that on 16.04.2016, he made a complaint before the officer-in-charge Sasaram (Muffasil) P.S., but he refused to lodge the FIR and then he informed the S.P. vide registered letter dated 24.04.2016, but no action was taken, whereafter only he filed the present complaint case, which was forwarded to the Sasaram (Muffasil) P.S., and accordingly the instant F.I.R. has been lodged.
The learned jurisdictional magistrate, by exercising power under Section 156(3) of the Cr.P.C., sent complaint to the concerned Police Station for investigation of the case after registering the FIR. In furtherance of same, Sasaram(Muffasil) P.S. Case No.672 of 2016 was registered, where after investigation, the charge-sheet has been submitted against the petitioner and other co-accused persons for the offences punishable under Sections 341, 323, 382, 406, 420 and 504 of the I.P.C., where upon perusal of materials available on record, learned Judicial Magistrate took cognizance for the aforesaid offences, against which the present petition was preferred.
It is submitted by learned counsel appearing for the petitioner that from the perusal of complaint, it nowhere appears that any allegation appears available against this petitioner. It is further submitted that the petitioner only alleged to touch complaint with illegal fire arms during the occurrence. There is no allegation regarding advancing threat or of any firing or overt act by using alleged illegal fire arms. It is further submitted that the petitioner is a practising Advocate, who is practising in Patna, and as the said property dispute was with his elder brother who is now no more, the present complaint case was filed. It is further submitted that admittedly for the recovery of Rs.7.50 lakh, which alleged to paid by informant/OP no.2 to the deceased elder brother of the petitioner in connection with the land deal, one Money Suit bearing no.15 of 2017 was filed against co-accused persons including the son of the deceased elder brother of the petitioner.
In view of such background, it is submitted that purely this dispute is arising out of civil dispute, related with land dispute for which the money suit is pending and this petitioner being brother, was falsely implicated with present case. It is further submitted that the factual aspects of this case nowhere suggest that any cognizable offence is being made out against this petitioner.
In support of his aforesaid submission, learned counsel relied upon the legal report of Hon’ble Supreme Court as available through State of Haryana and Others vs. Bhajan Lal and Others reported in 1992 Supp (1) SCC 335.
Learned counsel appearing for the informant/OP no.2, while opposing the prayer of petition submitted that vide order dated 03.08.2023, the entire proceeding of this case was put on hault and as a result of which the proceeding against main culprit was also stayed. However, it is fairly conceded that the money transaction was not with this petitioner, and the allegation is only available in those terms as submitted aforesaid by learned counsel appearing for the petitioner.
It would be apposite to reproduce the para 102 of Hon’ble Supreme Court in the case of Bhajan Lal Case (supra), 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 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 spite him due to private and personal grudge.”
In view of aforesaid factual and legal submissions and by taking note of fact as occurrence is primarily civil in nature, for which the money suit is also pending between the parties qua recovery of Rs.7.50 lakh as advanced by informant/OP no.2 to the deceased elder brother of the petitioner, accordingly, it transpired that the petitioner appears implicated only out of oblique and ulterior motive, accordingly, by taking a guiding principle nos. 3 and 7 of Bhajan Lal Case (supra), the impugned cognizance order dated 03.04.2018 qua petitioner, namely, Dinesh Mishra @ Dineshwar Mishra is hereby set aside/quashed.
Accordingly, the present petition stands allowed.
Let the copy of judgment be communicated to the learned trial court forthwith, with TCR, if any.