Pankaj Singh @ Pankaj Kumar Singh vs State Of Jharkhand

Subhash Chand, J

Learned counsel for the petitioner and learned A.P.P. for the State are present but no one appears on behalf of the Opposite Party No.2 despite service of notice.

The instant criminal miscellaneous petition has been directed on behalf of the petitioner to quash the entire criminal proceeding arising out of Nirsa P.S. Case No.167 of 2016, corresponding to G.R. Case No.2124 of 2016 registered for the offence alleged under Sections 354(D), 504 and 506 of the Indian Penal Code including order taking cognizance dated 2nd August, 2016 passed by the learned Judicial Magistrate 1st Class, Dhanbad, whereby the cognizance has been taken under Sections 354(D), 504, 506, 34 of the Indian Penal Code.

Learned counsel for the petitioner has submitted that the learned trial court while taking cognizance against the petitioner has not applied the judicial mind. The order is not in detail to show how the alleged offence is made out against the petitioner. In F.I.R., the role of all the accused persons has also not been assigned. In view of the above contended to allow this petition and to set aside the cognizance order and entire criminal proceeding of the case.

Learned A.P.P. appearing on behalf of the State vehemently opposed the contentions made by the learned counsel for the petitioner.

From very perusal of the F.I.R., it is found that the informant Kalyani Devi has made allegation that on 28th May, 2016 at 12.25 in night her daughter had gone to bathroom. It is further alleged that her neighbour, Vikas Singh has already led the way and nabbed the hand of her daughter and her daughter raised alarm. The accused had also closed the door of the bathroom with intent to outrage her modesty. She awoked her husband and in the meantime, the boy fled away breaking the door. Her daughter also narrated how the accused had tried to outrage her modesty by disrobing her. Her husband informed in regard to the occurrence to the patrolling police party, who reached to the place of occurrence and also went to the house of father of boy, namely, Surendra Singh. At this the father of the accused Surendra Singh and Pankaj Singh enraged and hurling abuse criminally intimidated them. It was also threatened that their son was also in police and if the F.I.R. was lodged the dire consequence will have to be faced.

From the very allegations made in the F.I.R., the cognizable offence is made out against the petitioner.

So far as the cognizance order is concerned, from perusal of the same, it is found that the learned Judicial Magistrate 1st Class, Dhanbad has perused the charge-sheet and case-diary as well, and has given his satisfaction that prima facie the offence under Section 354(D), 504, 506/34 of the I.P.C. is made out against all the accused persons.

The impugned order passed by the learned Judicial Magistrate 1st Class, Dhanbad in Nirsa P.S. Case No.167 of 2016 bears infirmity up to the extent of offence under Section 354-D of I.P.C. which is not made out against the present petitioners. The same offence is alleged to have been committed by Vikas Singh son of Surendra Singh. The common intention cannot be said to have been shared by the present petitioners with the accused Vikas Singh in commission of offence under Section 354-D of the I.P.C. which he had committed prior in time from the commission of offence under Sections 504 and 506 of the I.P.C. which was committed by the present petitioners when the informant went to complain in regard to Vikas Singh to his father Surendra on the very issue Surendra Singh and his another son Pankaj Singh both hurled abuse and criminally intimidated them. The sharing of common intention by both these petitioners is in commission of the offence under Section 504 and 506 of the Indian Penal Code, not the offence under Section 354-D of the Indian Penal Code.

As  such  the  impugned  order  passed  by  the  learned  Judicial Magistrate 1st Class, Dhanbad in Nirsa P.S. Case No.167 of 2016 needs interference to quash the same up to the extent for the offence of Section 354-D of the I.P.C. against the present petitioners. The rest of the cognizance order for the offence under Sections 504 and 506 of the Indian Penal Code read with 34 of the Indian Penal Code against the present petitioners needs no interference.

In view of aforesaid discussions, this criminal miscellaneous petition is, hereby, partly allowed and the impugned order passed by the learned Judicial Magistrate 1st Class in Nirsa P.s. Case No.167 of 2016 is quashed up to the extent of taking cognizance for the offence under Section 354-D of the I.P.C. against the present petitioners—Pankaj Singh @ Pankaj Kumar Singh and Surendra Singh.

In consequence thereof, the interim order dated 5th July, 2017 stands vacated.