IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr. Misc. No.1992 of 2009
SARDAR SWARN SINGH BAGGA, FATHER'S NAME - LATE LAL
SINGH BAGGA, RESIDENT OF MOHALLA - CHITKOHARA BAZAR,
PANJABI COLONY, P.S - GARDANIBAGH, DISTRICT - PATNA.
................ PETITIONER.
Versus
1. THE STATE OF BIHAR.
2. KEDAR CHOUDHARY, RESIDENT OF MOHALLA - CHITKOHARA
BAZAR, PANJABI COLONY, P.S. - GARDANIBAGH, DISTRICT
- PATNA. ............... OPP. PARTIES.
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07/ 02.02.2011 This is a petition for quashing the order dated
20.11.2000 passed by the C.J.M, Patna in Complaint Case No.
218 (C) of 2000 by which summon has been ordered to be
issued against accused person after taking cognizance for
offence under Sections 354, 323 and 380 of the Indian Penal
Code.
2. The prosecution case as alleged therein that
while the complainant was sitting in her house then the
accused persons six in numbers as mentioned in the complaint
petition have entered into the house breaking open the door
and the accused Sardar Swarn Singh Bagga tried to untie her
Saree and his three sons thrown her on the Chauki and tried to
rape her. On Halla the daughter-in-law, Punam Rani came out
and seeing her in half naked stage make a Halla then Sardar
Swarn Singh Bagga and his son flee away with gas cylinder,
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wrist watch and golden chain. The motive for the occurrence
is alleged that a Title Suit bearing Title Suit No. 156 of 1993
is going on in the court of Sub-Judge XV, along with the elder
brother of the complainant and Sardar Khajan Singh with
regard to the house which is the place of occurrence and it is
alleged that Sardar Khajan Singh had send the accused
persons to vacate the land and Sardar Swarn Singh Bagga and
his sons used to file cases without reason and it is alleged that
it was threatened to vacate the house within twenty four hours
else they will be killed.
3. On the complaint petition the complainant
was examined on oath and after considering the solemn
affirmation of the complainant and the statement of witnesses,
the cognizance has been taken.
4. Learned counsel for the petitioner, however,
contended that no offence is made out. It has further been
contended that the allegations made against the petitioner is
absurd and improbable which is repugnant to normal common
sense when the complainant itself a lady of more than 60
years old and the petitioner who is main accused along with
his three sons commit rape and further contended that the
allegation has been made to spit vengeance as a civil dispute
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is going on between the complainant and a co-accused Sardar
Khajan Singh which is also an accused but not the petitioner
and has prayed that the condition 5 and 7 of the decision
reported in 1992 SC 604 (State of Haryana & Ors. Vs. Bhajan
Lal & Ors.) is attracted and hence the order issuing process
appears to have been passed without due application of mind
by the Magistrate and hence requires to be quashed and has
placed reliance upon decision reported in 2009 (1) CCSC 196
(Eicher Tractor Ltd. Vs. Harirar Singh) and 2007 (3) BLJ 333
(Vijay Kumar & Ors. Vs. State of Bihar).
5. Learned counsel for the State, however,
opposes the prayer on the ground that the allegations made
make out an offence it is the opinion of the Magistrate for
issuing process which shall prevail for issuing process.
6. However, taking into consideration the
position of law as settled by the Supreme Court in Bhajan
Lal’s case reported in 1992 SC 604 (Supra) which has laid
down 7 conditions for consideration for inquiry Section 482
of the Cr.P.C and out of the 7 conditions, condition no. 5 and
7 mentions that where the allegation is made in the FIR is so
absurd and inherently improbable on the basis of which no
prudent person can ever reach to a just conclusion that there is
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sufficient ground for proceeding against the accused persons
and condition no. 7 mentions that where a criminal
proceeding is manifestly attended with mala fide or
proceeding is maliciously instituted with an ulterior motive
for wreck vengeance on the accused and with a view to spit
him due to private and personal grudge.
7. However, the petitioner is stated to be 70 years
old has been charged for committing an attempt of rape or to
outrage the modesty of a women aged 60 years along with his
son and the occurrence is alleged to have been done to oust
the complainant from the house which is the place of
occurrence for which a Title Suit is going on between the
complainant and co-accused Sardar Khajan Singh. Sardar
Swarn Singh Bagga, the petitioner is the next door neighbour
of Sardar Khajan Singh who had sent the accused persons to
vacate the house.
8. However, it is true that the allegation makes
out an offence and this Court in exercise of power under
Section 482 of the Cr.P.C has no jurisdiction to examine the
correctness or otherwise of the allegation and the
uncontroverted allegation make out a prima facie offence and
further the exercise of jurisdiction under Section 482 of the
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Cr. P. C are requires to be exercised sparingly. However,
there is allegation of abuse and assault and outrage the
modesty and taking away the articles dishonestly and the
motive of the occurrence is threat to vacate the house and
however, when allegation makes out an offence and witness
support in enquiry to make out prima facie case then mala fide
of informant would be secondary importance cannot be the
basis of quashing.
9. The decision reported in 2009 (1) CCSC 196
(Supra) is for taking cognizance under Sections 420, 467 and
471 of the Indian Penal Code where the summons issued were
not served and warrant of arrest and process under Section 82
issued and hence is not applicable to the facts and
circumstances of the case. In case reported in 2007 (3) BLJ
333 (Supra) complaint lodged was sent for lodging FIR and
police submitted final form as case palpably false and
cognizance taken on protest-cum-complaint without
intelligent enquiry and hence not applicable to the fact and
circumstance of the case. However, at this stage this court
cannot take into consideration the defence of the accused,
hence, taking into consideration the facts and circumstances, I
do not find fit to interfere with the impugned order at this
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state and hence the petition is dismissed.
Kundan (Gopal Prasad, J.)