IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.11060 of 2012

1. Harishankar Prasad Gupta @ Harishankar Pd. S/O Late Kishun
Prasad @ Kishu Gupta R/O Vill-Pakri (DASRATHA), Near
Indian Oil Sipara, P.S.Beur, Distt-Patna

2. Mohan Gupta @MOHAN Prasad S/O Hari Shankar Prasad Gupta
R/O Vill-Pakri (DASRATHA), Near Indian Oil Sipara, P.S.Beur,
Distt-Patna

3. Sohan Gupta @ Sohan Prasad S/O Hari Shankar Prasad Gupta
R/O Vill-Pakri (DASRATHA), Near Indian Oil Sipara, P.S.Beur,
Distt-Patna
… … Petitioner/s
Versus

1. The State Of Bihar

2. Pawan Kumar Gupta S/O Prabhu Niranjan Kumar Gupta R/O Vill-Parshuram
Chak(Kurthaul), P.S.Parsa Bazar, Distt-Patna
… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Rajeev Ranjan Sinha
For the Opposite Party/s : Mr. Mangal Pandit(App)

CORAM: HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
C.A.V. JUDGMENT

Date : 11-04-2018

Heard learned counsels for the parties.

Petitioners, by means of this application under

section 482 of the Code of Criminal Procedure, have invoked

the inherent jurisdiction of this Court with prayer to quash the

order dated 13.02.2012, passed by the learned Judicial

Magistrate, 1st Class, Patna in connection with Complaint Case
Patna High Court Cr.Misc. No.11060 of 2012 dt.11-04-2018
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No. 2312 C of 2009 under section 323, 341, 379 of the Indian

Penal Code, whereby and whereunder the discharge petition

under section 245 Cr.P.C. dated 29.08.2011 filed by the

petitioner has been rejected.

The prosecution case, in short, is that on

28.08.2009 about about 2 PM the complainant alongwith his

father and brother was going to purchase articles by a Tempo.

When they reached Sipara Gumti, 5-6 unknown persons stopped

the Tempo and one of them struck on the temple of the

complainant by the butt of the pistol and asked him to deliver

his belongings and as such the complainant handed over Rs.

25,000/- and his father handed over Rs. 2,000/- and his brother

gave Rs. 500/- in fear and all of them stated that they know

them and threatened not to lodge any case.

Learned counsel appearing for the petitioners

submits that petitioners are quite innocent and have committed

no offence as alleged, rather they have been falsely implicated

in the present case only with a view to save their skin from

Parsa Bazar P.S. Case No. 152 of 2009 (Annexure-2) dated

29.08.2009 under section 498A/34 of the Indian Penal Code

lodged by the daughter of the petitioner no.1. The daughter of

the petitioner no. 1, who is wife of the brother of the
Patna High Court Cr.Misc. No.11060 of 2012 dt.11-04-2018
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complainant, had earlier filed Complaint Case No. 2628 C of

2006 (Annexure-3) in connection with assault and torture made

by her in-laws due to non-fulfillment of demand of dowry. That

case was later on compromised between the parties and on basis

of the compromise the complainant as well his father were

acquitted. Thereafter, they were residing peacefully, but after

some time she was again brutally assaulted by her husband and

other in-laws, then she filed the aforesaid police case vide

Annexure-2. It is further submitted that the husband of the

daughter of petitioner no. 1 thereafter filed Complaint Case No.

2326 C of 2009 against these petitioners vide Annexure-4.

Learned counsel, therefore, prays for quashing of the order

taking cognizance.

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

petitioner and agrees with the same. The present case has been

filed after filing of the police case by the daughter of the

petitioner no. 1 which in terms of the judgment rendered by the

Hon’ble Supreme Court in the case of State of Haryana Vs.

Bhajan Lal, reported in 1992 Supp (1) SCC 335 is a malicious

prosecution. Relevant extract of paragraph 102 of the aforesaid
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judgment is quoted hereinbelow for ready reference :

“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) – (6) …….

(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

dated dated 13.02.2012, passed by the learned Judicial

Magistrate, 1st Class, Patna in connection with Complaint Case

No. 2312 C of 2009 under section 323, 341, 379 of the Indian

Penal Code, whereby and whereunder the discharge petition
Patna High Court Cr.Misc. No.11060 of 2012 dt.11-04-2018
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under section 245 Cr.P.C. dated 29.08.2011 filed by the

petitioner has been rejected, is not sustainable in the eye of law.

Accordingly, the order dated 13.02.2012 and the entire criminal

proceeding is, hereby, quashed.

The application, thus, stands allowed.

(Arvind Srivastava, J)
mcv/-

AFR/NAFR NAFR
CAV DATE 21-11-2017
Uploading Date 12.04.2018
Transmission Date 12.04.2018