The principle of abuse of process can be invoked to quash criminal proceedings if the allegations do not constitute an offence, lack evidence, or are maliciously instituted.

JUDGMENT :

1. By order dated 26.10.2021 notices were directed to be issued upon the O.P.No.2. The Office note suggest that notice upon O.P.No.2 has been effected and with a view to provide one opportunity the matter was adjourned to 3.02.2022. Again matter was adjourned 04.05.2022. Inspite of sufficient opportunity provided to the O.P.No.2 and inspite of valid service of notice nobody has responded on behalf of the O.P.no.2.

2. Today also on repeated calls nobody has responded on behalf of the O.P.No.2 and accordingly the matter was heard on merit.

3. Heard Mr. Mahesh Tewari, the learned counsel appearing for the petitioner and Mr. B.N.Ojha, the learned counsel for the respondent State.

4. This petition has been filed for quashing the order dated 09.8.2021 passed by the learned Exclusive Special Judge, POCSO Act, Palamau at Daltonganj in Special POCSO Case No.62 of 2017 arising out of Pandu PS Case No.67 of 2017 whereby cognizance for offence under sections 354, 354(A), 376/511, 448, 509 of the IPC read with section 4/18 and 8 of Prevention of Children from Sexual Offences Act has been taken with a direction to issue summons to the petitioner, pending in the court of learned Exclusive Special Judge, POCSO Act, Palamau at Daltonganj.

5. Mr. Tewari, the learned counsel appearing for the petitioner submits that the petitioner is aged about 80 years and there are series of litigation between the petitioner and family members of O.P.No.2. By way of referring judgment passed by the civil court which are annexed as Annexure 9 to 14 he submits that for the land in question the family members of the O.P.No.2 and the petitioner have contested and only with a view to grab the land of the petitioner false case is being filed against the petitioner. He submits that pursuant to the FIR the police has investigated the matter and submitted final form disclosing lack of evidence on 30.12.2017. He further submits that after submission of final form O.P.No.2 again filed a case which was numbered as Complaint Case No.106/2018 which was converted into FIR and was registered as Pandu P.S.Case No.14 of 2018. He submits that again investigation was done by the police and final form has been submitted disclosing lack of evidence which has been accepted by the learned court by order dated 29.05.2019. He submits that now after four years the cognizance order has been taken with regard to FIR lodged prior to Pandu P.S.Case No.14 of 2018 in which final form has been accepted. He submits that entire allegation against the petitioner is malicious and no case under the IPC as well as POCSO Act is made out.

6. The learned counsel for the respondent State submits that on protest petition the learned court found material and thereafter taken cognizance against the petitioner.

7. The Court has gone through the materials on record whereupon it appears that Pandu P.S.Case No.67 of 2017 was filed on 01.12.2017 against the petitioner and final form has been submitted stating that there is no evidence against the petitioner. The O.P.No.2 further filed another case stating same allegation on 25.02.2018 in which also final form has been submitted stating there is no evidence against the petitioner which was accepted by the concerned court and after acceptance of the final form in the second case, protest petition filed in the earlier case and after four years cognizance has been taken against the petitioner. Once the second case has been filed in which final form was submitted it was incumbent upon the OP No.2 to file protest in the second case as in the earlier case which is subject matter of this Cr.M.P. the OP No.2 does not respond to the call by the learned court. Twice the matter was investigated by the police and both times final form has been submitted in favour of the petitioner and after lapse of four years cognizance has been taken in the earlier case namely Pandu P.S.Case No.67/2017. It is settled proposition of law that if any case is filed maliciously the court s