CRIMINAL MISCELLANEOUS No.10747 OF 2003
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In the matter of an application under Section
482 of the Code of Criminal Procedure,1973.
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RAJ KUMAR PANDEY SON OF LATE RAM NARAIN PANDEY,
RESIDENT OF VILLAGE GODIHA, P.LS. KUTUMBA (AMBA) IN
THE DISTRICT OF AURANGABAD.
... ... PETITIONER.
Versus
1. THE STATE OF BIHAR
2. SHMBHU PANDEY S/O CHANDRABHAN PANDEY
3. BINAY PANDEY
4. BHAGWAN PANDEY
5. SUBOTH PANDEY
6. DEVENDRA PANDEY
SONS OF SHAMBHU PANDEY, RESIDENT OF VILLAGE GODIHA,
P.S. AMBA, DISTRICT AURANGABAD.
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For the Petitioner : Mr. Ashok Kumar Singh, Adv.
For the State : Mrs.Indu Bala Pandey, A.P.P.
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P R E S E N T
THE HON’BLE MR. JUSTICE RAKESH KUMAR
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Rakesh Kumar,J. The sole petitioner, while invoking
inherent jurisdiction of this Court under
Section 482 of the Code of Criminal
Procedure, has prayed for quashing of an
order dated 21.1.2003 passed by Shri S.K.
Pandey, Judicial Magistrate, Ist Class,
Aurangabad in G.O.74 of 1995/Tr. No.29 of
2003, whereby the learned Magistrate has
rejected the discharge petition. In this
case, at the stage of charge, petition was
filed on behalf of the petitioner for his
discharge. However, the learned Magistrate,
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by the impugned order, has rejected the
discharge petition.
2. Short fact of the case is that on
the basis of fardbeyan of the petitioner in
the year 1995, an F.I.R. vide Kutumba P.S.
Case No.80 of 1995 was registered on 3.9.1995
for the offence under Sections 147, 148, 149,
448, 380 and 323 of the Indian Penal Code
against eight named accused persons. After
registering F.I.R., police started
investigation. However, during investigation,
the police found the allegation made by the
petitioner in the F.I.R. as un-true and as
such on 12.10.1995, a final report was
submitted by the police indicating the case
as un-true. On the same date, a prosecution
report was filed for prosecuting the
petitioner for the offence under Sections 182
and 211 of the Indian Penal Code. After
filing of prosecution report, the learned
Magistrate took cognizance of offence. At the
stage of charge, the petitioner filed a
petition for discharge which was rejected by
order dated 21.1.2003 passed by Sri S.K.
Pandey, Judicial Magistrate, Ist Class,
Aurangabad.
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3. Aggrieved with the order of rejection of discharge petition dated 21.1.2003 passed by Shri S.K. Pandey, Judicial Magistrate, Ist Class, Aurangabad, the petitioner approached this Court by filing the present petition. On 16.5.2006, the case was admitted for hearing. While
admitting, it was directed that the interim
order dated 19.11.2003 shall continue and
order of stay is still continuing.
4. Shri Ashok Kumar Singh, learned
counsel appearing on behalf of the
petitioner, while challenging the order of
rejection of discharge petition, submits that
the learned Magistrate, while passing the
impugned order, completely failed to
appreciate that after filing of the final
report and prosecution report, the petitioner
had filed a protest petition, which was
treated as complaint. However, the complaint
petition was rejected after conducting
enquiry on 2.8.1997 by the learned
Magistrate. The petitioner, aggrieved with
the rejection of complaint petition under
Section 203 of the Code of Criminal
Procedure, preferred a revision vide Cr.
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Revision No.77 of 1997 before the court of
learned District and Sessions Judge. Learned
counsel for the petitioner has referred to
Annexure-4 to the petition, which is a copy
of order passed by the learned Additional
District and Sessions Judge-III in Cr.
Revision No.77 of 1997 on 12.3.1993. By the
said order, the revision preferred by the
petitioner was allowed and the learned 3rd
Additional Sessions Judge directed the trial
court to hear the matter again. After the
order of revisional court, the learned
Magistrate, on 17.3.1999, took cognizance of
offence in Complaint Case No.673 of 1996/858
of 1997, which was preferred by the
petitioner. Learned counsel for the
petitioner has further submitted that after
cognizance, charges were also framed against
six accused persons on 8th July,2002. Learned
counsel for the petitioner has brought on
record copy of charges framed against accused
persons as Annexure-5 to the petition. It was
submitted by Shri Singh that since on the
protest-cum-complaint petition filed by the
petitioner, trial has already been initiated
against the accused persons, who were made
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accused in the F.I.R., which was lodged on
the fardbeyan of the petitioner, the learned
Magistrate was not at all entitled to proceed
with the prosecution of the petitioner for
the offence under Sections 182 and 211 of the
Indian Penal Code. It was submitted that
since prima facie allegation made by the
petitioner in Kutumba P.S. Case No.80 of 1995
has been found true in the protest-cum-
complaint petition preferred by the
petitioner, no offence can be made out
against the petitioner under Sections 182 and
211 of the Indian Penal Code. Accordingly, it
has been prayed to set aside the entire
proceeding in G.O.74 of 1995/Tr. No.29 of
2003 pending before the Judicial Magistrate,
Ist Class, Aurangabad.
5. Smt. Indu Bala Pandey, learned
Additional Public Prosecutor appears on
behalf of the State, who has opposed the
prayer of the petitioner.
6. Besides hearing learned counsel
for the parties, I have also perused the
materials available on record. Once the
protest petition was treated as complaint
petition, which was filed by the petitioner
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and in that case, learned Magistrate has
already proceeded with the trial against the
accused persons, who were made accused in the
F.I.R., which was lodged by the petitioner,
there is no point to proceed with the
allegation of commission of offence under
Sections 182 and 211 of the Indian Penal
Code. The proceeding against the petitioner
in G.O.74 of 1995/Tr.No.29 of 2003 is
apparently abuse of the process of the court
and as such with a view to prevent the abuse
of the process of the court, it is necessary
to interfere with the impugned order as well
as entire proceeding.
7. Accordingly, entire proceeding in
G.O.74 of 1995/Tr. No.29 of 2003 pending in
the court of Judicial Magistrate, Ist Class,
Aurangabad is hereby set aside and petition
stands allowed.
( Rakesh Kumar,J.)
PATNA HIGH COURT
Dated 7.9.2010
N.A.F.R./N.H.