Taking cognizance on similar allegations without new prima facie material constitutes an abuse of process of law.

JUDGMENT :

(Sanjay Kumar Dwivedi, J.) :

Learned counsel has not appeared on behalf of opposite party no.2 in the first round of call and in second round of call of the present case, again nobody is present on behalf of opposite party no.2. In view of that, this petition is being heard in absence of opposite party no.2.

2. Heard Mr. Arbind Kumar Sinha, learned counsel for the petitioners and Mr. V.S. Sahay, learned counsel for the State.

3. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 27.08.2014 arising out of Complaint/Protest Case No.2044/2013, corresponding to T.R. No.348/2015, pending in the Court of the learned Judicial Magistrate, 1st Class, Giridih.

4. The complaint/protest case was filed alleging therein that on the date of occurrence the complainant was working in maintenance of vehicles. Accused no.1 came and entered into the shop and started abusing. On the protest of abusing, they assaulted by fists and slaps and asked them to vacate the shop premises otherwise kill you. Accused no.2 also came and entered into the shop and he also assaulted by way of fist and slaps. Both the accused threw some articles of the shop and a damage of worth Rs. 2,000/-was caused by them. It was further alleged that on alarm of the complainant nearby people started coming at the shop of the complainant, accused persons took Rs. 2,000/-from the Gulla and threatened if you go to the police station you will be killed and police is in my favour and asked to vacate the shop. The cause of occurrence is that accused no.1 wanted to by force vacate the shop which was run by the complainant for the last 20 years and paid rent and livelihood of the family is depending on the earning of the shop. The complainant paid rent and also received rent receipts. At the time of taking rent, the complainant paid Rs. 2,000/-to Ganga Ram. The complainant went to the Police Station where accused Shiv Kumar Bhagat was already sitting there. The complainant narrated the entire incident to the Officer in charge. The officer in charge also tortured and asked the complainant to vacate the shop. It was also alleged that accused no.1 with the connivance of the Police Station has submitted final form before the Court and during course of investigation named witnesses have not been examined and examined other witnesses in place. It was further alleged that wrong investigation has been done in the present case. The complainant is ready to produce witnesses named in the complaint petition.

5. Learned counsel for the petitioners submits that earlier Complaint Case No.432/2012 was filed for the same offence, which was sent by the learned Court under Section 156(3) Cr.P.C. for registration of FIR and investigation and pursuant to that, Nimiyaghat P.S. Case No.84 of 2013 was registered on 21.06.2013 under Sections 452, 380, 323, 427 and 504 of the Indian Penal Code. He submits that in the said FIR, final form was submitted by the police on 27.09.2013 stating therein lack of evidence. He further submits that thereafter the present complaint/protest case was filed in which, the learned Court has been pleased to take cognizance against the petitioners. He submits that the subject matter in the earlier case and the present case are similar and in the order taking cognizance, prima facie materials are not disclosed by the learned Court. On these grounds, he submits that the entire criminal proceeding may kindly be quashed.

6. Mr. Sahay, learned counsel for the State submits that the final form was there, however, the learned Court has been pleased to take cognizance on the protest petition. However, he does not dispute the fact that the allegations in earlier FIR and present complaint/protest case are similar.

7. It is an admitted position that the earlier FIR registered for the same allegation, was investigated by the police and final form was submitted saying lack of evidence and on the protest petition, the