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Bijay Yadav & Anr vs State Of Bihar & Anr on 11 April, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.13437 of 2017
Arising Out of PS.Case No. -63 Year- 2014 Thana -M AGADH M EDICAL COLLEGE District-
GAYA

1. Bijay Yadav S/o Kishori Yadav

2. Munni devi W/o Bijayyadav, Both R.O. Village Kathotia, P.S. Magadh Medica,
Dist.-Gaya

…. …. Petitioner/s
Versus

1. The State of Bihar

2. Munni Devi W/o Ajay Yadav R/o Village-Kathotia P.S. Magadhmedical, Dist.-
Gaya

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Amarendra Kumar Mishra, Adv.
For the Opposite Party/s : Mr. Md. Arif, A.P.P.

CORAM: HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
CAV JUDGMENT
Date: 11-04-2018

Heard learned counsel for the parties.

This application under Section 482 of the Code of

Criminal Procedure has been filed by the petitioner for quashing of

order dated 14.12.2015 passed by the learned Additional Chief

Judicial Magistrate, Gaya in connection with Magadh Medical Case

No. 63 of 2014 whereby the learned court below took cognizance

against the petitioners under Sections 34, 323 498A of the Indian

Penal.

The brief facts, according to the F.I.R., is that informant

was subjected to assault and torture by the petitioners and they have

ousted her from her matrimonial home saying that they will not

allow her to live in her matrimonial home. It is further alleged that
Patna High Court Cr.M isc. No.13437 of 2017 dt.11-04-2018

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the petitioners used to threaten her and her family members also

saying that if she will lodge a case, they will kill her and elope her

dead body also. Hence, the informant being left with no option

lodged the instant case.

Learned counsel for the petitioners has submitted that

these petitioners happen to be brother-in-law and sister-in-law of the

informant and have falsely been implicated in this case. In fact, prior

to filing of the case, these petitioners along with other family

members have been made accused in a case bearing Magadh

Medical P.S. Case No. 107 of 2011, Annexure-3, in which the

parties have compromised the case and thereafter again these

petitioners have been made accused in this case with bald

allegations. Moreover, the father of husband of the informant has

also filed a case bearing Magadh Medical P.S. Case No. 67 of 2015

alleging therein that the informant and others have killed his son,

who is husband of the informant. The series of cases itself show the

conduct of the informant that she is in habit of filing forged and

fabricated cases in order to harass the petitioners and to grab the

property of the petitioners. Therefore, the prosecution of the

petitioners appears to be a malicious prosecution in terms of

judgment rendered by the Hon’ble Supreme Court in the case of

State of Haryana Vs. Bhajan Lal, reported in 1992 Suppl. (1) SCC

335. On the above ground, it is submitted that the cognizance order
Patna High Court Cr.M isc. No.13437 of 2017 dt.11-04-2018

3

dated 14.12.2015 passed by the learned Additional Chief Judicial

Magistrate, Gaya is bad in law and is fit to be quashed.

It is pertinent to mention here that despite notice issued

to the O.P. No.2 by this Court, she has chosen not to appear before

this Court to contest the matter.

Considering the materials available on record and the

facts and circumstances of the case, this Court finds substance in the

submissions advanced on behalf of the petitioners and agrees with

the same. Therefore, further prosecution of the petitioners would

amount to abuse of the process of the Court and the prosecution of

the petitioners appears to be a malicious prosecution in view of the

judgment rendered by the Hon’ble Supreme Court in the case of

State of Haryana Vs. Bhajan Lal, reported in 1992 Suppl (1) SCC

335. Relevant extract of paragraph 102 of the aforesaid judgment is

quoted herein-below for ready reference;

” In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapeter XIV
and of the principles of law enunciated by this Court
in a serious 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)-(6)…….

Patna High Court Cr.M isc. No.13437 of 2017 dt.11-04-2018

4

(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 the discussions made above, the order taking

cognizance dated 14.12.2015 passed by the learned Additional Chief

Judicial Magistrate, Gaya in connection with Magadh Medical Case

No. 63 of 2014 whereby and whereunder cognizance has been taken

against the petitioners for the offence under Sections 34, 323

498A of the Indian Penal Code, is not sustainable in the eye of law.

It is, therefore, quashed.

This application is, accordingly, allowed.

(Arvind Srivastava, J)

Brajesh/-

AFR/NAFR NAFR
CAV DATE 30.11.2017
Uploading Date 16.04.2018
Transmission 16.04.2018
Date

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