Full Judgment
2. Short fact of the case is that the opposite party no.2 had filed a written report before the Officer-in-charge, Jagdishpur Police Station, disclosing therein that on 17.9.2001 in the night at 12.00, the petitioner no.1 Thengu Singh had looted certain articles like Battery of the Tractor of the informant, Dynamo etc. from the vehicle of the informant. The reason of commission of such occurrence was mentioned that a case was going on in between the informant and petitioner no.1 and on the date of filing of the F.I.R., date was fixed for examination of witness. With a view to frighten the complainant from not producing any witnesses, the accused petitioner no.1 had committed the said occurrence. On the basis of said written report, an F.I.R. vide Jagdishpur P.s. Case No.182 of 2001 was registered on 18.9.2001 for the offence under Sections 379 and 427 of the Indian Penal Code. While investigation was going on, the informant filed a protest petition. However, after conducting thorough investigation, police submitted final form on 29.10.2001 indicating therein that allegation made in the F.I.R. was false and concocted. While filing final report, the Investigating Officer also suggested for prosecuting the opposite party no.2 informant for offence under Sections 182 and 211 of the Indian Penal Code. Besides filing final form, the police also filed a prosecution report, a copy of the same has been brought on record as Annexure-3 to the petition. By the said prosecution report, it was prayed to prosecute the opposite party no.2-informant for offence under Sections 182 and 211 of the Indian penal Code. Subsequently, the protest petition was treated as complaint. However, it was rejected on 30.5.2002. Against the order of rejection of complaint petition, the opposite party no.2 had preferred a revision vide Cr. Revision No.42 of 2003. However, in the meantime, on the basis of prosecution report, Shri A.K. Singh, learned Judicial Magistrate, Ara, by its order dated 8.7.2002 passed in Tr. No.1222 of 2002 in Complaint Case No.241 of 2002, took cognizance of offence under Sections 182 and 211 of the Indian Penal Code against the opposite party no.2 and directed for issuance of summon. The revision, which was preferred by opposite party no.2-informant against the rejection of his complaint petition, was allowed on 5.4.2003 i.e. Annexure-6 to the petition and thereafter, by the impugned order i.e. order dated 2.6.2003, the learned Magistrate has taken cognizance of offence under Sections 341, 379 and 427 of the Indian Penal Code against all the accused persons.
3. Aggrieved with the order of cognizance dated 2.6.2003, the petitioners approached this Court by filing the present petition, which was admitted on 1.7.2004. While admitting, notice was directed to be issued. In the meantime, it was directed that further proceedings in Complaint Case No.241(C) of 2002/Tr. No.1222 of 2003 pending in the court of Shri A.K. Singh, Judicial Magistrate shall remain stayed. The order of stay is still continuing. Despite the fact that opposite party no.2 has entered his appearance through advocate, at the time of hearing, none has appeared on his behalf.
4. Shri Ram Chandra Singh, learned counsel appearing on behalf of the petitioners, while challenging the impugned order, has firstly argued that the protest- cum-complaint petition, which was filed by the opposite party no.2 was itself false due to the reason that in the F.I.R., which was instituted on the written report of the opposite party no.2, it was categorically asserted that the informant had received information from one Ram Sakal Yadav regarding the occurrence. According to the informant-opposite party no.2 had not witnessed the occurrence, but it was seen by Ram Sakal Yadav and accordingly F.I.R. was registered only against petitioner no.1. However, in the protest-cum-complaint petition, the informant has asserted as if he was the person, who had witnessed the occurrence. Besides impleding the petitioner no.1 as accused, he had also arrayed petitioner nos.2 to 4 as accused. According to learned counsel for the petitioners, this change of version is sufficient for drawing an inference that even earlier case was lodged falsely and subsequent protest-cum- complaint petition was also false. Falsity of the allegation made by the informant in the F.I.R. has been proved by the investigating agency. During investigation of Jagdishpur P.S. Case No.182 of 2001, which was lodged as per the instance of opposite party no.2, the police had found that the case was palpably false and as such final report was submitted. A prosecution report was also submitted against the opposite party no.2. It has been subsequent argued that once the learned Magistrate has already taken cognizance against the opposite party no.2 for filing false case against the petitioner no.1 allowing petitioners on a subsequent order of cognizance against the petitioners on the protest-cum-complaint petition will amount to abuse of the process of the court and as such it has been prayed to quash the order of cognizance and entire proceeding so far petitioners are concerned.
5. It has already been indicated that none has appeared on behalf of opposite party no.2. However, Shri Hirday Prasad Singh learned Additional Public Prosecutor has appeared on behalf of the State.
6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. From the record, it is evident that initial F.I.R., which was lodged as per the written report of opposite party no.2, was found false during the investigation by the police and on the basis of prosecution report on 8.7.2002, the learned Magistrate has already taken cognizance of offence under Sections 182 and 211 of the Indian Penal Code against opposite party no.2. Once the learned Magistrate has taken cognizance of offence on the prosecution report against the opposite party no.2 for filing false case against one of the petitioners, it would not be appropriate to allow prosecution of the petitioners on the protest-cum-complaint petition. If it is allowed certainly it will directly create hindrance in smooth disposal of Tr. No.1222 of 2003, which has been initiated against opposite party no.2. Besides this, the change of version in the protest-cum-complaint petition from the F.I.R. has also persuaded this Court to draw an inference that opposite party no.2 had submitted incorrect and false protest-cum-complaint petition. Accordingly, with a view to prevent the abuse of the process of the court, it is necessary to interfere with the impugned order of cognizance.
7. Accordingly, the order of cognizance dated 8.9.2003 passed by the Judicial Magistrate, 2nd Class, Arrah in Complaint Case No.241(C) of 2002, Tr. No.1222 of 2003 arising out of Jagdishpur P.S. Case No.182 of 2001 as well as order dated 4.9.2003 passed in Cr. Revision No.154 of 2003 are hereby set aside and petition stands allowed.