Hari Shankar Prasad, J.@mdashBoth cases [W.P. (Cr) No. 200 of 2003 and Cr. M.P. No. 4510 of 2001] arise out of the same matter and are being disposed of by the common order.
2. Cr. M.P. No. 4510 of 2001 has been filed u/s 482 of the Code of Criminal Procedure, for quashing the entire criminal prosecution including the order dated 24.7.2000 passed in Complaint Case No. 116 of 1999 whereby and whereunder the learned Judicial Magistrate, 1st Class, Hazaribagh has taken cognizance under Sections 323/504 of the Indian Penal Code against the petitioner,
3. Facts leading to filing of the application are that O.P. No. 2 lodged and FIR with Ichak P.S. being Ichak P.S. case No. 35 of 1999 which was registered on 18.3.1999 under Sections 323, 324, 307, 500 and 504 of the Indian Penal Code. The police after investigation submitted final form false No. 102/99 dated 30.6.1999 and also submitted prosecution report under Sections 182/211 of the Indian Penal Code on the same date against the informant for his prosecution. The final form was accepted but no order was passed on prosecution report submitted by the I.O. to prosecute the information under Sections 182/211 of the Indian Penal Code. It is further stated that the learned Chief Judicial Magistrate, Hazaribagh transferred the protest petition, submitted by the informant/complainant, to the Court of Shri Sudhakar Singh, Judicial Magistrate, Hazaribagh u/s 192 of the Code of Criminal Procedure and the learned Judicial Magistrate treated this protest petition as a complaint and examined complainant on S.A. and examined three witnesses u/s 202 of the Code of Criminal Procedure and came to a conclusion that a case u/s 323/504 of Indian Penal Code is made out and took cognizance against the petitioner of the offence on 24.7.2000.
4. W.P. (Cr) No. 200 of 2003 has arisen on its own motion on the basis of the report submitted by Shri Rajiv Ranjan, Judicial Magistrate, 1st Class, Hazaribagh in connection with complaint case No. 116 of 1999, T.R. No. 1211 of 2003 and facts of this case, as it appears from the report of Mr. Rajiv Ranjan, Judicial Magistrate, 1st Class, Hazaribagh, is that inspite of is suance of summons and warrants several times and even after writing letters on various dates, even upto the Inspector General of Police, the order of the Court was not complied with and the petitioner went on evading the process of the Court and in evading the process of the Court, even senior police officials to whom letters were issued, did not make any effort and at the same time, even did not respond to the letters of the learned Judicial Magistrate, although they were duty bound to do so.
5. Learned counsel appearing for the petitioner submitted that cognizance taken on 24.7.2000 is barred by limitation u/s 468 of the Code of Criminal Procedure. It was submitted that date of occurrence is 30.5.1998 and cognizance is taken on 24.7.2000 for the offence u/s 323/504 of the Indian Penal Code and punishment provided u/s 323 is one year whereas punishment u/s 504 is two years. In this connection, Section 468 of the Code of Criminal Procedure may be quoted herein-below :-
468. Bar to taking cognizance after lapse of the period of limitation.-(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years;
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
Section 468(2)(c) is applicable in the facts and circumstances of this case and the limitation will start running from the date of occurrence and will be applicable till 19.5.2001 whereas cognizance has been taken on 24.7.2000 and further punishment provided u/s 504 of the Indian Penal Code is two years and fine, so period of limitation will expire on 30.5.2001 and not prior to 24.7.2000 and, therefore, this ground taken by the learned counsel for the petitioner is not applicable and this plea is not accepted.
6. It is also pointed out that there was delay in filing of the complaint petition and no reason has been assigned for filing the complaint petition at such belated stage and after such long time, as the occurrence is said to be dated 19.5.1998 and the complaint petition was filed on 17.2.1999. It is also submitted that the complaint petition was referred to the P.S. concerned u/s 156(3) of the Code of Criminal Procedure and police after investigation submitted final form false against the complainant and also recommended for prosecution of the informant for setting motion of law falsely, but the learned Chief Judicial Magistrate, Hazaribagh accepted the final form but did not pass any order on prosecution report submitted u/s 182/211 of the Indian Penal Code.
7. It was also submitted that complainant has suppressed material facts that the petitioner being the police officer of Ichak Police Station instituted Ichak P.S. Case No. 50 of 1998 on the FIR lodged by the complainant which was counter-blast to the Ichak P.S. Case No. 49 of 1998 lodged by his uncle and both cases were investigated by the petitioner and charge-sheet was submitted by the petitioner in both these cases and at present, both cases being S.T. No. 58 of 2000 and 209 of 1999 are pending for trial in sessions Court (Annexures-4 and 4/1) and from perusal of the above FIR of the cases, it appears that the allegation brought by the complainant that the petitioner did not institute case on his FIR on 30.5.1998. is palpably false and fabricated. It is also submitted that the O.P. No. 2 P.K. Dhawan was arrested by the petitioner as he was named accused of Ichak P.S. Case No. 49 of 1998 under Sections 147/148/149/323/324, 337 and 307 of the Indian Penal Code. But soon after arrest, he was sent to hospital on the ground of his illness, as contained in Annexure-5 and this will make it clear that the complaint case and its connected protest petition was filed by the complainant against the petitioner as a personal vendetta to feed fat his own grudge of his arrest by police on 30.5.1998. It was also submitted that if the case is allowed to continue, then it will be an abuse of the process of the Court.
8. Notice was sent to the complainant O.P. No. 2 but he refused to receive the same. On behalf of the State, learned A.P.P. appeared and submitted that since cognizance has been taken after examination of three witnesses, hence there is no necessity to interfere with the cognizance order.
9. From the materials, on record, it is clear that complaint case was filed on the allegation that complainant-O.P. No. 2 had gone to Ichak P.S. on 30.5.1998 for lodging a case against his uncle, but no case on his allegation was registered and he was beaten with his family members including his mother and no case till filing of the complaint case Le., 116 of 1999, has been registered. But from perusal of Annexure-4/1, it appears that the case was registered on the same day and FIR was sent to the Court to learned Chief Judicial Magistrate and the same was received in the Court on 31.5.1998 and the allegation that complainant-O.P. No. 2 was assaulted, humiliated or beaten and no case was registered on his written report, is false and it so appears that on the basis of the written report of his uncle, a case being Ichak P.S. Case No,. 49 of 1998 was registered against him and other persons, whereas on his written report, Ichak P.S. Case No. 50 of 1998 was registered on 30.5.1998 and Ichak P.S. Case No. 49 of 1998 was also registered on 30.5.1998 and because of the fact that this complainant was named accused of Ichak P.S. Case No. 49 of 1998 registered under various sections including Section 307 of the Indian Penal Code, he was arrested by the petitioner but due to his illness, he was sent to the hospital for treatment which will be clear from Annexure-4/1, In course of submission, learned counsel for the petitioner relied upon 2004(2) E C C 240 (Jhr) wherein it has been held that petitioner already instituted case against the complainant and other u/s 307 of the Indian Penal Code and the allegation in the complaint appearing to be absurd and actuated with malice and such order was quashed. In this connection, my attention was drawn to Para-5 which is quoted herein-below :-
5. The petitioner is a public servant holding post of Block Development Officer and further, offence is said to have taken place in the chamber of the petitioner and there is no allegation that any money was taken of something was snatched by the petitioner. There is also no allegation, as it appears from complaint petition, that she took part in the assault. It also appears from the complaint petition that several persons were inside the chamber of the Block Development Officer and she was discharging her duty in official capacity and further a case has been lodged by the petitioner herself as informant bearing Patan P.S. Case No. 20 of 2002 which this complainant-O.P. No. 2 and 100 persons have been made accused and there is specific allegation against this complainant. Further, that serious allegation of attempting to commit murder of Block Development Officer has been alleged. In such a situation, it is but natural that in order to save himself from the case, a complaint case has been filed by the complainant-O.P. No. 2 against this petitioner and other persons. It is true that defence version should be considered at the time of trial stage only, but here case appears to have been filed actuated with malice and further that, there is no allegation actually against the petitioner. A reliance was placed in the case of
(1) Where the allegation 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 made 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 u/s 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 uncontroverted allegation made in the FIR or complaint and the 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 u/s 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and 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 of 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 grievances 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 grudge.
On perusal of the ground referred to in the citation referred above, it appears that the allegations made in the complaint are so absurd and 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. Here in the instant case, case as made out is that the complainant was staging demonstration along with his supporters and, petitioner is said to have been sent message calling three of them and, complainant and two others went inside the room where husband of the petitioner and other police officials including the officer-in-charge of the P.S. concerned, were present and as soon as complainant and others entered into the chambers of the B.D.O. petitioner, they started abusing them in filthy language. But as per materials on record, it appears that B.D.O. petitioner had already instituted a case against the complainant and hundred other persons of causing murder out attack on her u/s 307 IPC besides other section also and thereafter he was, arrested and sent to jail and some days after release from jail, he has filed this case alleging allegation against the petitioner and others of calling him Chamar and assaulting him. But this allegation appears to be absurd and actuated with malice because of the fact that a case has already been instituted by the petitioner herself. As per complaint petition, complainant with others were staging demonstration which was peaceful and, therefore, B.D.O. petitioner is said to have called delegation of three persons and, complainant and two others went to meet her but when peaceful demonstration was going on and no harm, as per complaint petition, was caused, then there was no reason as to why the said occurrence of abusing in filthy language and assaulting will take place and thus, story appears to be absurd and actuated with malice.
10. What I find from the materials brought on record is that the complaint case No. 116 of 1999 has been filed with oblique motive. Further, in this connection reliance may be placed upon the case of
11. In that view of the matter, Cr. M,.P. No. 4510 of 2001 is allowed and entire criminal prosecution including the order dated 24.7.2000 passed in complaint case No. 116 of 1999 is hereby quashed. So far as W.P. (Cr) No. 200 of 2003 is concerned, it will be necessary to issue guidelines so that in future, there will be immediate compliance of the processes issued by the learned Court below and violation of the those guidelines will be deemed as contempt of order of this Court.
