Dilip Kumar vs State Of Bihar

Heard learned counsels for the petitioners and learned counsel appearing on behalf of the State. However, no one appears on behalf of the opposite

party no. 2 even after issuance of notice.

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 10.02.2011, passed by the learned Additional Chief Judicial Magistrate, Patna City, Patna in connection with

Agamkuan P.S. Case No. 224 of 2010, whereby and whereunder cognizance has been taken against the petitioners for the offence under sections

447, 461, 323, 34 of the Indian Penal Code.

The prosecution case, in short, is that as per written report of the informant is that petitioners along with 8-10 unknown accused persons locked the

main gate of Nalanda Ceramic and destroyed marble worth Rs. One Lakh in the godown.

Learned counsel appearing on behalf of the petitioners submits that no offence against the petitioners is disclosed and the present prosecution has

been initiated with mala fide intention for the purposes of harassment. Petitioner no. 1 is a Doctor and on the date of occurrence, he was present as a

Medical Officer in the Additional Primary Health Centre, Samastipur. In this regard, In-charge, Medical Officer, has already given a certificate as

Annexure-2. Petitioner no. 2 is a student of Budha Institute of Dental Sciences and Hospital, Patna (Annexure-3) and petitioner no. 3 is a house wife

staying with her husband at his place of posting. In fact, the petitioner no.1 has purchased a land of the informant from one Dayanand Prasad, due to

which, there was a dispute with the informant. Further submission is that the proceeding under section 144 Cr. P.C. and one Misc. Case No. 540 of

1993 have been going on between the parties. The present malicious prosecution has been brought against the petitioners with false and frivolous

allegations. Therefore, learned counsel prays for quashing the order taking cognizance.

Considering the materials available on record and the facts of the case, this Court finds substance in the submissions advanced on behalf of the

petitioners. Moreover, the present case has been filed by the informant only after dispute occurred between the parties with regard to purchase of

land, 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 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 channelized and inflexible guidelines or rigid

formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercise:

(1) â€" (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.â€​

In view of the discussions made above, the order taking cognizance dated 10.02.2011, passed by the learned Additional Chief Judicial Magistrate,

Patna City, Patna in connection with Agamkuan P.S. Case No. 224 of 2010, is not sustainable in the eye of law. Therefore, it is, hereby, quashed.

Accordingly, the application stands allowed.