ANJU PATHAK Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under sec. 482 of the Code of Criminal Procedure (in short as 'the Code') has been filed for quashing the order dated 19.2.1998 passed by Shri B.K. Malviye, Judicial Magistrate, llnd Class, Begusarai in G.R. No. 344 of 1993 whereby and whereunder he has issued summon against the petitioner under sec. 319 of the Code to face the trial.

(2.) The prosecution case, in short, is that one Ratan Shankar Pathak, brother-in-law of the petitioner, filed a petition of complaint against the petitioner and others in the Court of Chief Judical Magistrate, Begusarai on 18.11.1992, a copy of which was sent to Police under sec. 156(3) of the Code for registration and investigation on the basis of which the police registered Begusarai Town PS. Case No. 61 of 1993. In the complaint petition it was mentioned that the complainant and his family had gone to attend a Puja ceremony and at about 11.30 p.m. he returned back alongwith one Shakti Jha to the house when he found lock of his dwelling room lying in broken condition. He also found some persons inside the room. The complainant reached at the door of his room raising alarm and then he saw the accused persons coming out of the room holding articles in their hands with intention to commit theft. On protest being made by the complainant and his wife Meera Pathak, the accused person assaulted the complainant and his wife with fists and slaps. It is alleged that accused Hari Shankar Pathak took away box containing articles, accused Jai Shankar Pathak took away two rajai, accused Uma Shankar Pathak took away twenty one pairs of dhoti and accused Ram Swaroop Pathak carried away Lota and Thali. The Police after investigation, submitted charge-sheet but the petitioner was not sent up for trial.The charges were framed against charge-sheeted accused persons and trial proceeded and after examination of 7 witnesses a petition was filed on behalf of the prosecution to summon the petitioner under sec. 319 of the Code. Learned Magistrate heard the matter and by impugned order dated 19.2.1998 allowed the prayer and directed the office to issue summon against the petitioner Anju Pathak. Against the said order 19.2.1998 the petitioner has preferred the present application for quashing before this court.

(3.) The submission of the learned counsel for the petitioner is that during pendency of the criminal trial co-accused no. 4 Ram Swaroop Pathak died and the other remaining three accused named Hari Shankar Pathak, Jay Shankar Pathak and Uma Shankar Pathak faced the trial and by judgment dated 19.6.2002 they have been acquitted by the court below. His further submission is that against the said order of acquittal neither the informant nor the petitioner filed any appeal before the court. His further submission is that nothing specific has been assigned against the petitioner and as per the evidence of PWs. 5, 6 and 7 she was only member of that mob. His also submission is that the order impugned is mechanical one and the continuation of the present criminal proceeding against the petitioner is an abuse of process of the court.