- (1.) HEARD learned counsel for the petitioners and learned counsel for the State. The private respondent No. 4 has not appeared in spite of notice. This writ petition has been filed for quashing the entire criminal proceeding as well as the FIR in connection with Koderma (Telaiya) P.S. Case No. 415 of 2001 corresponding to G.R. No. 685 of 2001 instituted against the petitioners for the offence under Sections 406, 420, 120B, 109 and 111 of the Indian Penal Code against the petitioners.
(2.) THE respondent No. 4 is the informant in the said case, who is the step brother of petitioner No. 2, wherein he has made allegation against his step mother and step brother to have taken away his gold ornaments weighing 40 tola on 5.11.2001, on the pretext of getting them exchanged for the purpose of marriage of son of the informant. On the basis of the written information given by the informant, Koderma (Telaiya) P.S. Case no. 415 of 2001 was instituted and investigation was taken up. The petitioners filed this writ petition for quashing the proceeding in the said Koderma P.S. Case No. 415 of 2001 on the ground that the petitioners have been falsely implicated in this case, inasmuch as on the said date i.e. 5.11.2001, the statement of the petitioner No. 2 was recorded on solemn affirmation in the Court of Chief Judicial Magistrate, Akola in the State of Maharashtra, in a complaint case filed by petitioner No. 2 against some other persons. Learned counsel for the petitioners accordingly, submitted that this clearly shows that the petitioners being the step mother and brother of the informant have been falsely implicated in this case at Jhumri Telaiya due to the family dispute. Learned counsel has brought on record certain documents to show the enmity between the parties, due to the fact that the father of petitioner No. 2 and the informant, had executed a Will in favour of the these petitioners with respect to a double storied house property vide Annexure-2. Learned counsel submitted that due this property dispute, the petitioners have been falsely implicated in this case and accordingly, the entire criminal proceeding in the said case is fit to be quashed. Learned counsel for the State, on the other hand, has opposed the prayer of the petitioners submitting that it is well settled principle of law that at this stage, there should be no interference in the investigation of the criminal case, particularly, in view of the fact that offence is clearly made out against the petitioners in view of the allegations made in the F.I.R.
(3.) HAVING heard learned counsels for both the sides and upon going through the record, I find that the offence relates to the alleged occurrence dated 5.11.2001. The petitioners have brought on record as Annexure 7, an undisputable piece of document to show that on the same date i.e., on 5.11.2001, the statement of petitioner No. 2 was recorded on solemn affirmation in the Court of the Chief Judicial Magistrate at Akola in the State of Maharashtra, in a complaint case filed by him against other persons. Though it is a settled principle of law that at this stage the defence of the accused is not to be looked into and if the offence is made out on the basis of the allegations in the FIR, the criminal proceeding against the accused cannot be quashed in exercise of the extra ordinary power under Art. 226 of the Constitution of India, but in the present case the petitioners have brought on record an undisputable document to establish the presence of the petitioner No. 2 in the Court of the Chief Judicial Magistrate at Akola in the State of Maharashtra. This clearly falsifies the allegation against the petitioners, as it cannot be possible that the petitioner shall be physically present both at Akola in the State of Maharashtra as also at Jumari Telaiya on the same day. In view of this undisputable document brought on record, I am of the considered view that the petitioners have been able to establish beyond any reasonable doubt that they have been falsely implicated in Koderma (Teleiya) P.S. Case no. 415 of 2001 and the continuance of the proceedings against the petitioners shall be sheer misuse of the process of the Court. The informant has not appeared in spite of valid service of notice upon him.;