The power under Section 482 of the Code of Criminal Procedure should be exercised in exceptional and rare cases.

Rakesh Kumar, J.

1. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 5.1.1998 passed by Smt. Rita Mishra, Judicial Magistrate, Patna. By the said order, learned Magistrate has taken cognizance for offence under Section 406 of the Indian Penal Code in Complaint Case No. 1297 of 1997.

2. Short fact of the case is that the complainant, who claims to be nephew of one Binod Kumar, had hired a double storied building from Binod Kumar and thereafter, he established a Poly-clinic in the name and style of Banarsi Das Parasram House, which is commonly known as B.P. Hospital. It was alleged in the complaint petition that the petitioner, who was a doctor by profession, was employed on the salary basis in the said hospital. Subsequently, after the hospital started running smoothly, the petitioner got his wife and son employed in the said hospital and after the hospital was fully established and started showing huge earning the petitioner took over possession of entire account and record of the hospital. It was alleged by the complainant that the petitioner committed an offence of criminal breach of trust and due to which the complainant was put to a loss of about Rs. 50,000/-. It was further alleged that the petitioner illegally took forceful control over the instruments and equipments of the hospital in question and virtually, he started to enjoy all the benefits of the hospital in question independently. It was alleged that it was a case of criminal breach of trust. It was alleged that offence under Sections 201, 341, 380, 409, 452 and 120B of the Indian Penal Code was committed by the petitioner. The said complaint was filed on 13.11.1997.

3. After filing of the complaint petition, the complainant was examined on S.A. and in support of the complaint, three witnesses were also examined and thereafter, the learned Magistrate by its order dated 5.1.1998 took cognizance of the offence under Section 406 of the Indian Penal Code.

4. Shri Naresh Dikshit, learned Counsel appearing on behalf of the petitioner firstly submits that in the entire complaint petition, there is no allegation of entrustment to the petitioner. He further submits that in the complaint petition even the complainant had not alleged commission of offence under Section 406 of the Indian Penal Code. It appears that in complaint petition under the heading nature of offence, mechanically and ornamentally sections were mentioned as 201, 341, 380, 406, 452 and 120B of the Indian Penal Code. Learned Counsel for the petitioner has further referred to Annexure-2 to the petition, which was an order passed by S.D.M., Patna whereby a proceeding under Section 107 of Cr.P.C. was initiated. He submits that since the petitioner has proceeded with the said case, the present complaint was filed by the complainant. He further, by referring to paragraph-12 of the petition, submits that the petitioner had filed a case for fixation of fair rent on 27.11.1997 and said case was pending at the time of filing of the present petition.

5. Sri Naresh Dikshit submits that the complaint petition does not disclose commission of offence under Section 406 of the Indian Penal Code and he further submits that since the petitioner has filed afore referred cases, the present complaint petition was maliciously filed by the complainant. He has also referred to Annexure-3 series to the petition, which are typed copy of affidavits filed by some imminent doctors of Patna and said doctors have stated on oath that the petitioner is Director and Proprietor of B.P. Hospital, Arya Kumar Road, Rajendra Nagar, P.S. Kadamkuan, District Patna. He further submits that the complaint petition does not indicate any criminal offence but at best it can be termed as a dispute which is civil in nature and he has relied upon a judgment of Honble Supreme Court reported in A.I.R. 2006 Supreme Court 2780 (M/S In