BAL KISHAN TEWARI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This application is directed against the order dated 8.4.2010 passed by the then Sub-divisional Judicial Magistrate, Madhupur at Deoghar in Madhupur P.S case no.248 of 2009 (G.R. No.578 of 2009) whereby and whereunder cognizance of the offence was taken under Sections 384/504 of the Indian Penal Code. The facts giving rise to this application are that one Anita Pathak, opposite party no.2 lodged a case on 9.12.2009 at Madhupur Police Station stating therein that she is one of the members of an organization known as "Society for Advancement in Education, Dehradun". It has been alleged that on 27.11.2009 the petitioner, resident of Kanpur by making a call on telephone extended threat that he will not allow her society to be run. If she intends to run the society, she will have to pay Rs.10 lacs. It has been further alleged that on 3.12.2009 he came to her residence at Madhupur and misbehaved with her and conveyed her that he will get college known as "Asia School of Engineering and Management" being run through the society closed. On 5.12.2009 the petitioner again came and misbehaved with her and then extended threat that he will not allow the college to be run, if she does not make payment of Rs.10 lacs. The police after completion of the investigation submitted charge sheet under Sections 384/504, upon which cognizance of the offence was taken, vide impugned order which is under challenge. Mr.P.P.N.Rai, learned Sr. counsel appearing for the petitioner submits that taking the allegation made in the first information report to be true, no offence is made out either under Section 384 or under Section 504 of the Indian Penal Code and that allegation made appears to be quite improbable as no prudent man would believe that the petitioner, resident of district-Kanpur would come down to Madhupur and would indulge in the manner as has been alleged and that in fact, the said allegations are attended with malice and has been lodged at the instance of Arun Kumar Mishra, Chief Engineer, UPSIDC, Kanpur, who by adopting corrupt means has committed financial irregularity in UPSIDC, for which a case has been instituted and is being prosecuted by this petitioner.

(2.) Learned counsel in order to connect link did point out that one Illina Nayak, wife of the said Arun Kumar Mishra is the Secretary of the organization known as "Society for Advancement in Education" whereas the informant is one of the members and as such, one can easily come to the conclusion that the instant prosecution has been lodged though by Anita Pathak but it is Arun Kumar Mishra, who is instrumental in getting the case lodged and hence, when the prosecution appears to be malicious one,it is fit to be quashed.

(3.) Learned counsel in support of his submission has relied upon a decision rendered in a case of Deo Lakhan Paswan vs.State of Jharkhand &Ors., 2012 1 JLJR 206. As against this, Mr. B.M.Tripathy, learned Sr. counsel appearing for the opposite party no.2 submits that so far plea of malicious prosecution is concerned, it be noted that Arun Kumar Mishra never happens to be the informant and the link between the informant and the said Arun Kumar Mishra appears to be too remote and moreover, the police after investigating the case found the allegation prima faice true and under this circumstances, at this stage, it can never be taken that the instant prosecution is malicious one.