Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2115 of 2014 --- 1. Jitendra Kumar Mishra @ Jitendra Mishra, son of Shri Janak Mishra 2. Arvind Kumar Mishra @ Arvind Mishra, son of Shri Janak Mishra 3. Janak Mishra, son of Late Balgovind Mishra 4. Meena Devi @ Meena Mishra, wife of Shri Jitendra Kumar Mishra @ Jitendra Mishra, all resident of village & PO Solhanda, PS Makhdumpur, District Jehanabad (Bihar) … … Petitioners Versus 1. The State of Jharkhand 2. Md. Ashfaque Ansari, son of Md. Anwar Ansari, resident of Mohalla Barwadih, PS Giridih (M), PO & District Giridih (Jharkhand) … ... Opposite Parties --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioners : Mr. Pradeep Kr. Deomani, Advocate For the State : Mr. Shekhar Sinha, A.P.P. For the O.P. No. 2 : Mr. Kamdeo Pandey, Advocate --- 11/24.11.2016 Heard Mr. Pradeep Kr. Deomani, learned counsel appearing for the petitioners, Mr. Shekhar Sinha, learned A.P.P. for the State and Mr. Kamdeo Pandey, learned counsel appearing for the opposite party no.
2. In this application the petitioners have prayed for quashing of the entire criminal proceedings in connection with Complaint Case No. 458 of 2007 including the order dated 20.08.2007 passed by the learned Judicial Magistrate, Giridih by which cognizance has been taken for the offences punishable under Sections 148, 149, 354, 379/34 of the Indian Penal Code. A further challenge has been made to the order dated 16.06.2014 passed by the learned Judicial Magistrate, 1st Class, Giridih by which the application for discharge preferred by the petitioner has been rejected. At the outset, it has been submitted by the learned counsel for the petitioners that he is confining his argument only with respect to the challenge which was made to the order dated 16.06.2014 passed by the learned Judicial Magistrate, 1st Class, Giridih. It has been submitted by the learned counsel for the petitioners that on account of kidnapping the daughter of the petitioner no. 1 by the opposite party no. 2 Giridih ( Muffisil) P. S. Case No. 226 of 2004 was instituted by the -2- petitioner no. 3 who also happens to be the grand father of the victim. Learned counsel submits that the brother of the complainant had instituted a case being Complaint Case No. 1140 of 2004 which, however, was dismissed under Section 203 of the Cr.P.C. It has been submitted that subsequently on 12.04.2007 the complaint case was instituted making allegation against the petitioners of abuse and threat and outraging the modesty which is by way of retaliation to the First Information Report which has already been instituted against the opposite party no.
2. Learned counsel further submits that custody of the victim was given to the petitioner no. 1 and being aggrieved by the said order the opposite party no. 2 had moved this Court which, however, was dismissed. It has been submitted that the present case is a malicious prosecution instituted against the petitioners who are all related to the victim. Further submission has been advanced that the impugned order dated 16.06.2014 has merely noted down the argument advanced on behalf of the respective parties but has not given any independent findings with respect to the fact as to whether a case is made out against the petitioners or not based on the materials available on records. Mr. Shekhar Sinha, learned A.P.P. for the State assisted by Mr. Kamdeo Pandey, learned counsel appearing for the opposite party no. 2, have vehemently opposed the prayer made on behalf of the petitioners and have stated that the entire incident had taken place in view of the fact that the opposite party no. 2 had solemnized marriage with the daughter of the petitioner no. 1 and sufficient evidence exists in that regard to suggest the complicity of the petitioners in the commission of the offence. Such fact has been considered by the learned trial court while rejecting the discharge application of the petitioners. It appears that the Giridih (Muffasil) P. S. Case No. 226 of 226 of 2004 instituted against the opposite party no. 2 on the allegations of kidnapping of the daughter of the petitioner no.
1. The complaint case lodged by the brother of the opposite party no. 2 which subsequently was dismissed under Section 203 of the Cr.P.C. The opposite party no. -3- 2 after a considerable length of time had instituted the complaint case making assertion that he has solemnized marriage with the daughter of the petitioner no. 1 and on account of such marriage the complainant and others were abused and theft was also committed in his house. It further appears that the custody of the victim was given to the petitioner no. 1 by an order passed by the learned Chief Judicial Magistrate, Giridih which was subsequently affirmed by this Court in W.P.(Cr.) No. 324 of 2006. The impugned order dated 16.06.2004 has although mentioned about the institution of the earlier criminal case by the petitioner no. 1 and criminal writ application preferred by the opposite party no. 2 but the submission which has been advanced by the respective parties were not considered in accordance with law as no reasons have been assigned in the impugned order dated 16.06.2004. Mere mention has been made about that the evidence of three witnesses examined under Section 202 of the Cr.P.C. which sufficiently proves a prima facie case against the petitioners. However, the surrounding circumstances which the petitioners relies upon and claims that the institution of the complaint case is by way of malicious prosecution has not been considered by the learned trial court while rejecting discharge application preferred by the petitioners. In view of the discussions made hereinabove, since the impugned order dated 16.06.2004 does not contain any justifiable reasons in refusing to discharge the petitioners from being prosecuted the same is hereby quashed and set aside and the matter is remitted back to the learned trial court to pass a fresh order in accordance with law after considering the materials available on records. The exercise indicated above is to be concluded within a period of two months from the date of receipt/production of a copy of this order. This application stands disposed of. Pending I.A.(s), if any, also stands disposed of. (Rongon Mukhopadhyay, J.) Umesh/-