KRISHNA KUMAR SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THREE petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 23.10.2002/22.10.2002, passed by the Judicial Magistrate, Ist Class, Darbhanga in C.R. No.772 of 1998/Tr. No.2564 of 2002, whereby learned Magistrate has taken cognizance of the offence under Sections 147, 453 and 380 of the Indian Penal Code against the petitioners and opposite party nos.3 to 6. The petitioners have further prayed to quash an order dated 5.8.2003 passed by learned Sessions Judge, Darbhanga, whereby revision preferred by the petitioners against the order of cognizance was rejected and also petitioners have prayed to quash entire criminal proceeding arising out of C.R. No.772 of 1998/Tr. No.2564 of 2002.

(2.) SHORT fact of the case is that opposite party no.2 filed a complaint case in the court of Chief Judicial Magistrate, Darbhanga, which was numbered as Complaint Case No.772 of 1998, against seven named accused persons and ten unknown persons on an accusation of commission of offence under Sections 451, 453, 380, 411, 323, 147 and 148 of the Indian Penal Code. It was alleged by the complainant that on the date of occurrence i.e. 21.6.1998, her husband, elder brother of her husband and her mother-in-law were in judicial custody in connection with Town P.S. Case No.53 of 1998 and her father-in-law and two elder brothers of her husband, had gone outside and since she was alone, she had gone to her maternal aunties house (Phuas house) after putting a lock on the house. On 21.6.1998 in the morning, she telephonically received information that accused persons were committing loot in her house after breaking lock and door. Thereafter, she immediately rushed to the house of her in-laws and found that all the locks were broken and all the accused persons, with unknown variously armed, were committing loot and loading household articles on a Truck and Station Wagon, which was standing outside the house. On objection being raised by the complainant, the accused persons chased her for assaulting any how, she escaped and from a telephone booth, she informed Shri Motilal Sharma, father-in-law of elder brother of her husband. In the meanwhile, local residents assembled there and started pelting brick bats. Subsequently, a police party arrived there and opened two round of firing. Thereafter, all the accused persons disappeared along with the looted articles. It was found that several household articles including some ornaments were missing. At the place of occurrence itself, the police recovered Golden Chain, Laucate, Top and one Alvin ladies watch from possession of one of the accused, namely, Vijay Kumar Sharma (Opposite 3rd Party). A seizure list was got prepared and police party thereafter, along with accused Vijay Kumar Sharma took the Truck and Station Wagon loaded with the household properties to the police station after putting a lock on the main door of the house. The complainant was informed by witnesses that the accused persons had already conducted one trip of the looted goods on Station Wagon and goods in the second trip was taken by the police. Despite information given by the complainant to the police, no F.I.R. was lodged and thereafter, the complaint petition was filed. After conducting enquiry, the learned Magistrate, by the impugned order dated 23.10.2002/22.10.2002, took cognizance of the offences under Sections 453, 380 and 147 of the Indian Penal Code and directed for summoning the accused persons including the petitioners. The petitioners, thereafter, filed a criminal revision against the order of cognizance vide Cr. Revision No.619 of 2002, which stood rejected by the learned Sessions Judge by its order dated 5.8.2003.

(3.) BESIDES hearing learned counsel for the petitioners and State, I have also perused the materials available on record. After going through the materials on record, the court is in agreement with the submission of learned counsel for the petitioner that the complaint petition was got filed in a calculated manner by the accused persons of Town P.S. Case No.53 of 1998, which was registered for offence under Sections 304B/120B of the Indian Penal Code against husband of the complainant, her father-in-law, mother-in-law and brother of the husband of the complainant. Annexure-1 is the copy of the F.I.R. of Town P.S. Case No.53 of 1998. Even the complainant herself has admitted in her complaint petition that some of the accused persons of Town P.S. case No.53 of 1998 were away from the house and husband of the complainant, elder brother of the husband of the complainant (husband of the deceased daughter of the petitioner no.1) and mother-in-law of the complainant were in judicial custody in Town P.S. Case No.53 of 1998 and date of occurrence in the complaint petition was shown as 21.6.1998, which is the date of occurrence in Town P.S. Case No.62 of 1998 registered on the basis of written application of Sub Inspector of Police of town police station in which it was alleged that on 21.6.1998, they had gone for attaching the property of the accused persons of Town P.S. Case No.53 of 1998 and thereafter, one of the close relative of the complainant along with others had created un-authorized and illegal hindrance in the attachment proceeding and as such amongst other accused persons, the father-in-law of the elder brother of the husband of the complainant was also made one of the accused in Town P.S. Case No.62 of 1998.