- (1.) 7/04.05.2012 This application under Section 482 CODE OF CRIMINAL PROCEDURE, 1973 has been filed by the petitioners for quashing the entire criminal prosecution of the petitioners arising out of Complaint Case i.e. C.P. Case No. 40 of 1999 [T.R. No. 463 of 2001] , then pending in the Court of Judicial Magistrate, Bermo at Tenughat
(2.) IT is submitted by the counsel for the petitioners that the opposite party no. 2 - Upendra Prasad is the son-in-law of petitioner nos. 2 and 3 and he had lodged a false case vide C.P. Case No. 40 of 1999 in which the learned Magistrate, without applying his judicial mind, had directed the petitioners to face trial for the offence under Sections 498, 323 and 379 of the Indian Penal Code vide order dated 08.04.1999. IT is further submitted that the allegations has been raised against the petitioners for committing offence under Section 498 of the Indian Penal Code and the complaint has been made against the wife of the opposite party no. 2 namely Ranjana also, and the Court has taken cognizance against her too. It is further submitted that it is not expected that father and mother will entice their daughter for illicit intercourse with anybody else other than the husband. Likewise, brother or brother-in-law are also not expected to do so. Surprisingly, Ranjana, who is the wife of opposite party no. 2, has also been made accused for committing offence under Section 498A of the Indian Penal Code in the matter of violation of law. The learned Magistrate has not applied his mind at the time of passing order under Section 204 of the CODE OF CRIMINAL PROCEDURE, 1973. So far offences under Section 323 and 379 are concerned, that is also not made out against these petitioners because the allegation is against Ranjana and the brother-in-law namely Bhushan Pd.. The prosecution of the petitioners is malicious and the contention made in the complaint does not constitute offence under Section 498 of the Indian Penal Code and, therefore, the entire criminal prosecution is liable to be quashed. The learned counsel appearing for the State has opposed the prayer.
(3.) THE opposite party no. 2 has appeared and filed counter affidavit but today the counsel is not present to place the matter on his behalf. However, I have gone through the records including the counter affidavit and the documents annexed therewith. It reveals from the order dated 22.07.1999 that these petitioners had appeared before the Court below but they had stopped taking steps and, therefore, warrant of arrest against them was issued on 22.07.1999. It appears that after issuance of warrant of arrest to frustrate the order of Court below by which warrant of arrest has been issued, this Criminal Misc. application has been filed to quash the entire proceedings arising out of C.P. No. 40 of 1999. No such petition was preferred just after the Order under Section 204 CODE OF CRIMINAL PROCEDURE, 1973 was passed. Furthermore, the learned Magistrate has directed the accused persons named in the Complaint to face trial for the offences under Sections 498, 323 and 379 of the Indian Penal Code. In a petition under Section 482 CODE OF CRIMINAL PROCEDURE, 1973, this Court will not distinguish that which of the offences is made out against which of the accused rather it is the duty of the Trial Magistrate to distinguish the allegations against the respective accused at the time of framing of the charge in a warrant trial case. It is not that no offence on the basis of averments made in the Complaint is made out against any of the accused and, therefore, I do not feel inclined to allow this application and accordingly, the same is dismissed. The interim order dated 22.02.2001 staying the further proceeding in C.P. Case No. 40/99 [T.R. No. 463/2001], then pending in the Court of Sri K.N. Pandey, Judicial Magistrate, Bermo at Tenughat, stands vacated. If required, the Court below may proceed in the matter in accordance with law.;