Ishrat Khatoon @ Ishrat Praveen vs The State of Bihar

Heard learned counsel for the petitioners and

learned Additional Public Prosecutor for the State.

The petitioners, in the present case, are seeking

quashing of the order dated 12.11.2014 passed by learned

Sessions Judge, Begusarai in Criminal Revision No.

300/2014, whereby the learned Sessions Judge, Begusarai has

dismissed the Revision Application and refused to set aside

the order dated 08.07.2014 passed by Sri R.R. Raman, learned

Judicial Magistrate, 1st Class, Begusarai in Complaint Case

No. 2040C/2013 filed on 13.09.2013. The learned Judicial

Magistrate, 1st Class, Begusarai has taken cognizance of the

offences under Section 323, 379 & 504 of the Indian Penal

Code.

Learned counsel for the petitioners has filed a

supplementary affidavit enclosing therewith the deposition of

witnesses produced by the complainant, the same has been

taken on the record. Learned counsel submits that the

complainant and accused persons are close agnates and have

certain land disputes. It is because of the said land dispute, the

complainant, in the present case, has filed one after another

four complaint cases including the present case in span of 10

days. Besides the present case, petitioner no. 1 has been made

an accused in three cases i.e. Complaint Case No.

2128C/2013, 2069C/2013 & 2098C/2013, whereas the

petitioner no. 2 has been made accused in Complaint Case no.

2069C/2013 and Birpur P.S. Case No. 763/2013. Petitioner

no. 3 has been made an accused in Complaint Case No.

2069C/2013. Learned counsel has produced a web copy of the

order dated 21.05.2015 passed by a co-ordinate Bench of this

court in Criminal Miscellaneous No. 50778/2014, by which

the entire proceeding against all the accused persons

including the order of cognizance dated 18.11.2014 passed by

learned Judicial Magistrate, 1st Class, Begusarai in Complaint

Case No. 2128C/2013 has been set aside.

Referring to the complaint petition (Annexure-

1), learned counsel submits that in all the complaint petitions

almost similar allegations have been made and the same three

witnesses have been produced to support the case of the

complainant. The allegations in the complaint petition is that

while the complainant was going to his house situated in the

village near Jama Maszid and reached on the road near his

house, all the accused persons with common intention asked

the complainant to stop his motorcycle. It is alleged that when

the complainant did not stop and was moving, then, accused

Md. Akhtar took out a pistol and threatened the complainant.

It is further alleged that, in the meantime, the accused Israt

Khatoon @ Israt Praveen took out a sum of Rs. 5,000/- from

the pocket of the complainant and, thereafter, all the accused

persons gave slap and fists blow to the complainant. It is

further alleged that accused Md. Sohail took away one mobile

(GV). The complainant alleged that he went to Birpur Police

Station, submitted a written report to the Officer-in-Charge,

Birpur, but the Officer-in-Charge refused to lodge an F.I.R.,

thereafter the present complaint is said to have been filed.

Learned counsel referring to the solemn

affirmation of the complainant submits that the complainant

was examined on oath in course of inquiry, in his statement

he changed the place of occurrence and alleged that while he

was in his house the accused persons came and committed the

alleged act. Learned counsel has specifically drawn my

attention to paragraph 2 of the deposition of the complainant

in which he has stated that he was alone in the house, there

was none with him.

Learned counsel then refers the deposition of

the inquiry witnesses and submits that in order to support the

changed version of the complainant, the witnesses have stated

that when they went to the house of the complainant they had

seen the alleged occurrence. Learned counsel submits that the

case, as disclosed in the complaint petition with respect to

place of alleged occurrence, has been completely changed in

course of deposition and contrary to the deposition of the

complainant that he was alone in his house, the witnesses

have come forward to say that they had been present and had

seen the alleged occurrence.

Learned counsel has submitted that petitioner

no. 1, Israt Khatoon @ Iflat @ Israt Praveen gave birth to a

baby only on 03.09.2013 at Agrasen Maitri Seva Sadan,

Begusarai, and therefore, it would be highly improbable that

she would involve in the alleged occurrence, moreover, on

earlier occasion also a co-ordinate Bench of this court has

found the allegations against these petitioners false in

Complaint Case No. 2128C/2013 and the court was pleased to

hold that the said complaint was frivolous in nature.

Learned counsel has further placed before me a

web copy of the order dated 17.09.2015 passed in Cr. Misc.

No. 49291/2014 by a co-ordinate Bench of this court to show

that one Sahnaz Begum, wife of Md. Sahadat had also filed

Birpur P.S.Case No. 100/2013 against the daughters of Md.

Akhtar, the said case was also quashed, holding that in the

said case police had found the allegations false, but the

learned Magistrate had taken cognizance without there being

any material. It is submitted that Md. Sahadat, whose wife

had lodged the case, is complainant witness no. 2 in the

present case. These are the chain of facts and circumstances

brought to the notice of the court and the documents enclosed

with the petition to show that the allegations are false and

flimsy and it is a mala fide prosecution of the petitioners.

Although, the Opposite Party No. 2 has

entered appearance but has not controverted the statements

made in the petition seeking quashing of the order taking

cognizance and the revisional order.

Learned Additional Public Prosecutor for the

State has argued that once the learned Magistrate has found a

prima facie case, this court may not interfere with the order

taking cognizance at this stage.

I have considered the submissions made at

the bar and perused the records. There is a force in the

submission of learned counsel for the petitioners. Perusal of

the complaint petition in the present case and the complaint

petitions giving rise to Complaint Case Nos. 2128C/2013,

2069C/2013 & 2098C/2013, would clearly show that all these

complaint cases have been filed with the same three witnesses

who are named as witness in the present complaint. In all

those cases, the allegations are on similar lines. The

complainant has admitted in her complaint petition giving rise

to Complaint Case No. 2098C/2013, that there is a land

dispute between the parties, as according to him, he had got

sale deed of some land in his name from his father and other

co-sharers. In Complaint Case No. 2069C/2013, there is a

similar allegation against the accused persons in the said case,

these petitioners are also named there as accused. The same

three witnesses are there.

This court find substance in the argument of

learned counsel for the petitioners that, in course of his

solemn affirmation, the complainant has changed his case and

the very place of occurrence is said to be the house of the

complainant. In the complaint petition, the complainant has

categorically stated that while he reached on the road near his

house, the alleged occurrence took place. But, in course of his

solemn affirmation, the complainant deposed that he was

alone in the house when the alleged occurrence took place

and nobody was there, if it is so, then the statement of the

complainant witnesses that they had gone to the house of the

complainant and had seen the alleged occurrence clearly

suggest a false prosecution. The statement of the petitioners

that accused no. 1, Israt Khatoon @ Iflat @ Israt Praveen had

given birth to a baby on 03.09.2013 only, and it is highly

improbable that a lady, who has given birth to a child only ten

days before, would be indulging in such occurrence, in

absence of any opposition, is acceptable to this court.

In view of the discussions, this court would

hold that the prosecution of the petitioners in the present case

is a mala fide prosecution, as allegations are apparently false,

flimsy and deposition of the complainant and his witnesses

are vacillating and contrary to each other. While taking

cognizance and issuance of summon the learned Magistrate

has acted in a routine and mechanical manner. To this court,

the deposition do not inspire confidence and seems highly

contradictory, therefore, those are not worth acting upon for

purpose of issuance of summon. Since this court finds it a

mala fide prosecution, continuation of the present proceeding

against the accused-petitioners would be an abuse of the

process of court. Thus, this court, in the interest of justice,

sets aside the revisional order as well as the order taking

cognizance and issuance of summons passed by Sri R.R.

Raman, learned Judicial Magistrate, 1st Class, Begusarai in

Complaint Case No. 2040C/2013.

This application is, accordingly, allowed.