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Krishna Bihari Singh & Ors vs State Of Bihar & Anr on 9 January, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.6231 of 2016
Arising Out of PS. Case No.-1143 Year-2015 Thana- ROHTAS COMPLAINT CASE
District- Rohtas

1. Krishna Bihari Singh Son of late Parikha Singh

2. Ashok kumar@Ashok kumar Singh

3. Shashi Ranjan Kumar@Guddu Kumar Both sons of Krishna Bihari Singh

All Resident of Village- Dihra, Police Station Dinara, District Rohtas.

… … Petitioner/s
Versus

1. The State of Bihar.

2. Rakesh Kumar Singh Son of Barister Singh Resident of Village-

Mohamadpur, Police Station Sheosagar (Baddi), District Rohtas, at Present

Resident of Mohalla- Jadav Mohalla- Gaurakashni , North of Kali Mandir,

House of Sheo Shankar Singh.

… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Sanjay Kumar Tiwary, Advocate
For the O.P. No. 2 : Mr. Baxi S. R. P. Sinha, Sr. Advocate with
Mr. Babunandan Prasad and
Mr. Ashutosh Tripathi, Advocates
For the State : Mr. Jharkhandi Upadhyay, APP

CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date : 09-01-2019

Heard learned counsel for the petitioners; learned A.P.P.

for the State and learned counsel for the opposite party no. 2.

2. Pursuant to order dated 29.11.2018, the opposite party

no. 2 is also present in Court.

Patna High Court Cr.Misc. No.6231 of 2016 dt.09-01-2019
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3. The petitioners have moved the Court under Section

482 of the Code of Criminal Procedure, 1973 (hereinafter referred

to as the ‘Code’) for the following relief:

“That this is an application for quashing
the order dated 9.11.2015 passed in
complaint Case No. 1143 of 2015 (T.R.
No. 736 of 2015) passed by learned
Additional Chief Judicial Magistrate,
Rohtas at Sasaram whereby and
whereunder learned Additional Chief
Judicial Magistrate, Rohtas at Sasaram
pleased to took cognizance against all
petitioners under
sections 504, 506, 406
of the Indian Penal Code.”

4. The petitioner no. 1 is the father-in-law of the

opposite party no. 2 (complainant) and petitioners no. 2 and 3 are

sons of petitioner no. 1. The allegation against them is of taking

Rs. 3,50,000/- and not returning the same and further of

threatening with dire consequences demanding further money.

5. Learned counsel for the petitioners submitted that the

present case has been filed on 25.08.2015 as a counter blast to

Sasaram Town P.S. Case No. 928 of 2015 which was filed by the

wife of the opposite party no. 2 on 14.08.2015 against him alleging

offences under Sections 498A/34 of the Indian Penal Code and 3/4

of the Dowry Prohibition Act against the opposite party no. 2 and

his mother. Learned counsel submitted that in the F.I.R., the

allegation was that the opposite party no. 2 used to consume liquor
Patna High Court Cr.Misc. No.6231 of 2016 dt.09-01-2019
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and abuse and assault the informant and also taunt her for giving

birth to two girls. Learned counsel submitted that from the plain

reading of the complaint, the entire story appears to be totally

unnatural and even absurd. It was submitted that the opposite party

no. 2 living in the town of Sasaram would call the petitioners who

are living far away in their village at Dihra under police station

Dinara for giving Rs. 3,50,000/- to them for safe keeping without

the petitioners taking the money or giving it to the person for

whom it had been withdrawn from the Bank, is difficult to believe.

Learned counsel submitted that in the background of strained

relationship between the husband and the wife, the fact that the

petitioners would come at the calling of the opposite party no. 2

and further that the opposite party no. 2 would give a such huge

amount to them is totally unbelievable. Learned counsel further

submitted that the present complaint case being filed only to

counter the case filed by the wife of the opposite party no. 2 would

be apparent from the fact that in the complaint, the opposite party

no. 2 has stated that the petitioners had threatened that if the

opposite party no. 2 did not give him the remaining amount, they

would get a case under the Dowry Act lodged against him.

Learned counsel submitted that the wife of the opposite party no. 2

had lodged the case in Sasaram Town P.S., as, at the relevant
Patna High Court Cr.Misc. No.6231 of 2016 dt.09-01-2019
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point of time, she was living with him and, thus, the falsity of the

complaint case would be further proved where it has been stated

that she used to live with the opposite party no. 2 for short periods.

Learned counsel submitted that the opposite party no. 2 not even

indicating that his wife was living with him on 13.08.2015 and

14.08.2015 is also indicative of the mala fide intention and of the

fact that falsity has been stated in the complaint petition. Learned

counsel submitted that the story of the petitioners not returning the

money to the opposite party no. 2 on 25.07.2015 and there being

no explanation as to what the opposite party no. 2 did with regard

to the same for more than two weeks also indicates that the story is

totally concocted and incorrect. Learned counsel submitted that

normally, as per the procedure, if a loan is taken for a specific

purpose which, in the present case, is said to be for buying land,

the Bank makes direct payment to the land owner and withdrawal

of cash from the account is not permissible by the loanee.

6. Learned A.P.P. submitted that there is a lot of

contradictions in the stand taken by the opposite party no. 2 which

does not inspire confidence in the allegations made in the

complaint.

7. Learned counsel for the opposite party no. 2 took a

preliminary objection that the present case under Section 482 of
Patna High Court Cr.Misc. No.6231 of 2016 dt.09-01-2019
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the Code is not maintainable as the order taking cognizance being

a final order, the case had to be filed by way of revision under

Section 397 of the Code. For such proposition, learned counsel

referred to and relied upon the decision of the Hon’ble Supreme

Court in the case of Mohit v. State of U.P. reported as (2013) 7

Supreme Court Cases 789, the relevant being at paragraphs no.

25, 29 and 32 for the proposition that when there is a specific

remedy provided by way of appeal or revision, inherent powers

under Section 482 of Cr.P.C. or Section 151 C.P.C. cannot and

should not be resorted to.

8. At this juncture, learned counsel for the petitioners

submitted that the reliance placed by learned counsel for the

opposite party no. 2 on the aforesaid judgment of the Hon’ble

Supreme Court in the case of Mohit (supra) is no more a correct

law. He referred to the decision of the Hon’ble Supreme Court in

the case of Prabhu Chawla vs. State of Rajasthan reported as

2016 (4) PLJR (SC) 174 in which it has been held that the

challenge to order taking cognizance can be assailed under the

inherent powers under Section 482 of the Code and further,

specifically at paragraph no. 7, the Court has held that the decision

in the case of Mohit (supra) does not state the law correctly.

Learned counsel submitted that the judgment in the case of
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Prabhu Chawla (supra) is by a three-judge Bench as compared to

the judgment in the case of Mohit (supra), which is by a two-judge

Bench. Faced with the situation, learned counsel for the opposite

party no. 2 submitted that he was not pressing the point of

maintainability.

9. Moving further, learned counsel for the opposite party

no. 2 submitted that from the passbook, copy of which has been

brought on record, it transpires that an amount of Rs. 3,50,000/-

was withdrawn on 22.07.2015. Learned counsel submitted that the

opposite party no. 2 has been put to a loss because of the conduct

of the petitioners as they had taken away huge money and have

also got a false case instituted against him through his wife.

10. As the opposite party no. 2 was present in Court, the

Court put certain queries to him. The first was as to whether he

had taken leave on 13.08.2015 and 14.08.2015 which were

working days being Thursday and Friday, he submitted that he was

on leave. On a further query as to whether the wife was with him,

he stated that she was with him in his house at Sasaram. On a

query as to when the wife was living with him on 14.08.2015 how

come there could have been threatening of getting a false case of

dowry registered, which was so done on 14.08.2015 itself, the

opposite party no. 2 could not give any explanation.
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11. At this stage, the Court asked the learned counsel for

the petitioners as to whether the opposite party no. 2 is also

misusing his position as an employee at the Civil Courts, Sasaram,

the answer was a categorical ‘Yes’. He submitted that in the case

filed by the wife there is hardly any progress whereas in the

complaint case filed things are moving at a quick pace. It was

further submitted that even the case filed by the wife for

maintenance on 11.01.2016, i.e., Maintenance Case No. 10 of

2016, there is no progress as not even interim orders have been

passed. It was submitted that the opposite party no. 2 is misusing

his position in the Civil Courts, Sasaram which has resulted in

such a situation.

12. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, the Court

finds that a case for interference has been made out. The entire

story in the complaint in the background of the facts as discussed

hereinabove clearly indicate that the same is only to create a

defence to the case filed by the wife of the opposite party no. 2,

being Sasaram Town P.S. Case No. 928 of 2015 on 14.08.2015 i.e.,

11 days prior to filing of the complaint case by the opposite party

no. 2. The Court, in this connection, would refer to the decision of

the Hon’ble Supreme Court in the case of State of Haryana v.
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Bhajan Lal reported as 1992 Supplementary (1) Supreme Court

Cases 335 in which at paragraph no. 102 various categories have

been indicated where the Court would exercise its powers under

Section 482 of the Code. The same reads as under:

“102. 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, thought 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) Where the allegations made in the
first information report or the complaint,
even if they are taken at their face value
and accepted in their entirety do not
prima facie constitute any offence or
make out a case against the accused.
(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not
disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except under
an order of a Magistrate within the
purview of
Section 155(2) of the Code.

(3) Where the controverted allegations
made in the FIR or complaint and the
Patna High Court Cr.Misc. No.6231 of 2016 dt.09-01-2019
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evidence collected in support of the same
do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where, the allegations in the FIR do
not constitute a cognizable offence but
constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate
as contemplated under
Section 155(2) of
the Code.

(5) Where the allegations made in the FIR
or complaint are so absurd inherently
improbable on the basis of which no
prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

(6) Where there is an express legal bar
engrafted in any of the provisions
of the
Code or the concerned Act (under which
a criminal proceeding is instituted) to the
institution and continuance of the
proceedings and/or where there is a
specific provision in
the Code or the
concerned Act, providing efficacious
redress for the grievance of the aggrieved
party.

(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 drudge.”

13. In the opinion of the Court, the present case falls

under category 7 set out in paragraph no. 102 of the aforesaid
Patna High Court Cr.Misc. No.6231 of 2016 dt.09-01-2019
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judgment of Bhajan Lal (supra). Further, it would be useful to

reproduce paragraph no. 7 of the judgment of the Hon’ble

Supreme Court in the case of State of Karnataka v. L.

Muniswamy reported as (1977) 2 Supreme Court Cases 699

which reads as under:

“7………In the exercise of this wholesome power,
the High Court is entitled to quash a proceeding if
it comes to the conclusion that allowing the
proceeding to continue would be an abuse of the
process of the Court or that the; ends of justice
require that the proceeding ought to be quashed.
The saving of the High Court’s inherent powers,
both in civil and criminal matters, is designed to.
achieve a salutary public purpose which is that a
court proceeding ought not to be permitted to
degenerate into weapon of harassment or
persecution. In a criminal case, the veiled object
behind a lame prosecution, the very nature of the
material on which the structure of the prosecution
rests and the like would justify the High Court in
quashing the proceeding in the interest of justice.
The ends of justice are higher than the, ends of
mere law though justice has got to be.
administered according to laws made by the,
legislature. The compelling necessity for making
these observations is that without a proper
realisation of the object and purpose of the
provision which seeks to. save the inherent powers
of the High Court to do justice between the State
and its subjects, it would be impossible to
appreciate the width and contours of that salient
jurisdiction.”

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14. From the discussions made hereinabove, the Court

finds that the prosecution is mala fide, untenable and solely

intended to harass the petitioners.

15. Accordingly, the application is allowed. The entire

Complaint Case No. 1143 of 2015 (Tr. No. 736 of 2015) along

with the order dated 09.011.2015 by which cognizance has been

taken against the petitioners under Sections 504, 506 and 406 of

the Indian Penal Code stands quashed.

16. Before parting with the order, the Court would dwell

on an equally important aspect for the reason that inherent powers

under Section 482 of the Code is also for the purpose of preventing

the abuse of the process of the court or otherwise to secure the

ends of justice. From the conduct of the opposite party no. 2, it is

apparent that he has misused his position being an employee at the

Civil Courts, Sasaram.

17. At this stage, learned counsel for the petitioners

submitted that for the said purpose, a case has been filed in the

High Court praying that all cases pending between the parties be

transferred out of Sasaram in which the opposite party no. 2 has

been noticed and he has also appeared.

18. In this connection, the Court would only observe that

for maintaining the dignity, purity and faith in the system, it is
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deemed appropriate to refer the matter to the Standing Committee

of the High Court to consider transferring of opposite party no. 2

from the Civil Courts, Sasaram to a judgeship far removed from

that place so as to prevent any undue influence exerted by him

with regard to the cases pending there.

19. The Registrar General of the Court shall place the

matter before the Standing Committee.

20. At this juncture, the opposite party no. 2 and learned

counsel appearing for him, prayed that one indulgence be given to

him and that he was ready to take his wife and children to his place

at Sasaram and keep them with full dignity, honour and security.

21. Learned counsel for the petitioners, on instructions

submitted that the wife is ready to go and live with the opposite

party no. 2, for which the Court may pass appropriate orders to

ensure her and her children’s safety.

22. In view of the aforesaid, order with regard to

quashing of the case stands. However, the direction with regard to

transfer and other action against the opposite party no. 2, is kept in

abeyance, for the time being. This has been done on the assurance

given by opposite party no. 2 that he will take his wife and two

daughters to his place and keep them with full dignity, honour and

security and shall take care of all their needs, including medical
Patna High Court Cr.Misc. No.6231 of 2016 dt.09-01-2019
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expenses and daily expenditure. The wife shall be free to talk to

and meet and entertain her relatives without any objection from the

opposite party no. 2 and also go to her parental home. The

opposite party no. 2 shall go to the house of his wife and from

there bring her, along with the two children to his house at

Sasaram and keep them with full dignity, honour and security and

they shall not be compelled to go to the native village of the

opposite party no. 2. The same be done within one week from

today. Further, the opposite party no. 2 shall be personally liable if

any untoward incident happens either to his wife or the two

children or if they are maltreated in any way.

23. The matter be listed on 10th April, 2019 under the

heading ‘For Orders’.

24. In the meantime, if the opposite party no. 2 fails to

comply with the assurance given before the Court, it shall be open

for the wife of the opposite party no. 2 to file a petition before the

Court for passing any order which may be deemed appropriate.

25. The Court would record that the order with regard to

the wife and children of opposite party no. 2 being sent to the

house of opposite party no. 2 has been passed at the behest of the

opposite party no. 2.

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26. The Court would further observe that if on the next

day, matters appear to be settled, the Court may facilitate in

bringing to an end all litigation between the parties.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR
U
T

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