Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.10184 of 2011 ====================================================== Anil Kumar Jha, son of Sri Shankar Jha, resident of Mohalla-Binodpur, Mahila College Road, Katihar, District Katihar, previoulsy posted as Circle Officer cum Block Development Officer, Baikunthpur Block, District Gopalganj, now posted as D.C.L.R. Buxar .... .... Petitioner/s Versus 1. The State of Bihar 2. Mithilesh Kumar Singh, son of Sri Jai Nath Singh resident of Deokuli, P.O.Shyampur, P.S. Mohammadpur, District Gopalgnaj as stated in Complaint petition .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Shailendra Kumar Singh, Adv. For the Opposite Party/s : Mr. Baxi S.R.P. Sinha, Sr. Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN C.A.V. ORDER 8 30-08-2013 This application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) has been filed for quashing the order dated 31.5.2010 passed by learned Judicial Magistrate-1st Class, Gopalganj in Complaint Case No. 2991 of 2009 whereby the learned Magistrate has been pleased to take cognizance of the offence punishable under Sections 323, 352 and 504 against the petitioner and which order has been affirmed by the learned Additional District and Sessions Judge, F.T.C.III, Gopalganj vide order dated 10.2.2011 passed in Cr. Revision No. 450 of 2010/38 of 2010. The complaint case in question was filed by the complainant-opposite party No.2 claiming to be a Railway agent for the Braj Kishore Halt for the last 6 years. 2 2 / 11 It is alleged that he had filed an application for renewal of his agency but the accused including the petitioner under a conspiracy, cancelled his domicile certificate granted by the District Development Officer, Gopalganj with the malafide intention of depriving him from the agency work. It is alleged that gathering such information he filed an appropriate application under the Right to information Act on 11.11.2009 seeking information to this effect and which was made available to him on 8.12.2009 though incomplete. It is the allegation of the complainant that when he confronted the accused persons on this aspect, they abused him and forcefully ousted him from the office resulting in the complaint case in question. The learned Judicial
Facts
Magistrate after examining the complainant on solemn affirmation and holding enquiry as envisaged under Section 202 of the Code during which course two witnesses namely; Dhrup Singh and Shashi Bhushan was examined, took cognizance of the offence on 31.5.2010 against the three accused persons. The order taking cognizance was questioned by the petitioner before the Revisional Court in Cr. Revision No. 450 of 2010/38 of 2010 and which was dismissed vide order dated 10.2.2011 passed by the learned Additional District and Sessions Judge, F.T.C.III, Gopalganj and hence the present application. 3 3 / 11
Legal Reasoning
record prima facie make out an offence. I have heard learned counsel for the parties and have perused the materials on record. Law as regarding the scope of intervention by this Court in exercise of inherent powers is well settled and has also been explained in the judgment rendered in the case of U.P. Pollution Control Board (supra) and thus this Court would not like to make any further additions to the same. The only aspect that is to be seen at this stage is whether the allegations made in the complaint if accepted on its face value does make out any criminal offence against the petitioner. The complaint has been placed at Annexure-1 and whereas the major portion thereof deals with the cancellation of the residential certificate by this petitioner, the concluding line of the complaint 9 9 / 11 charges the accused persons including this petitioner of collectively and forcefully pushing the complainant out of the office. There is neither any thing specific against any of the accused nor the allegation in any way makes out any criminal offence. It is the case of the complainant that the accused under a conspiracy have indulged in forgery in cancelling his residential certificate and upon protest, he was assaulted. Surprisingly, although the complainant has not made any specific allegation of assault against any of the accused but the deposition of the witness is a development thereon and while witness Dhrup Singh has deposed that the petitioner had assaulted the complainant, there is no evidence of physical assault by this petitioner in the deposition of the second witness Shashi Bhushan Kumar Singh. The circumstances aforementioned clearly manifests that the witnesses have tried to develop the story of assault by introducing fresh fact which did not find mention in the complaint. While the complainant has merely charged the accused of forcefully pushing him out of the office, his witnesses have gone ahead to charge each of the accused with separate allegations of assault. Such development in the deposition of the witnesses during Section 202 enquiry is clearly an attempt to plug the loopholes in the original complaint. It is now to be seen whether 10 10 / 11 considering the nature of allegation and even accepting the allegation on its face value, whether it would constitute a criminal offence against the petitioner. The answer is in the negative for the simple reason that it is not the case of the complainant that the alleged occurrence has resulted in any physical injury to him nor there is any document to support that the complainant suffered physical injury in the occurrence. A sweeping allegation of such nature cannot form a basis for continuation of a criminal prosecution especially when it finds its origin in the order cancelling the residential certificate of the complainant and the petitioner happens to be the author thereof. The accompanying circumstances considered in its entirety leaves no room for doubt that the criminal prosecution in question is attended with malafides and is a retaliatory action against the cancellation of the residential certificate of the complainant by the petitioner. Besides, the absence of sanction for prosecution is another feature drawn in favour the petitioner. The circumstances set forth would not prevent this Court in exercising its inherent powers merely by the presence of the revisional order. A continuation of such a prosecution would not only be a clear case of harassment of the petitioner but would also be an abuse of the process of the Court. 11 11 / 11 For the reasons aforesaid, this application is allowed. The order taking cognizance dated 31.5.2010 passed in Complaint Case No. 2991 of 2009 in so far as it relates to the petitioner, is quashed and set aside. Bibhash/- (Jyoti Saran, J)
Arguments
Mr. Shailendra Kumar Singh, learned counsel has appeared for the petitioner while the State has been represented through the Additional Public Prosecutor and Mr. Baxi S.R.P. Sinha, learned Senior counsel has appeared for the complainant-opposite party No.2. With the consent of the parties this matter was taken up for final disposal at the stage of admission itself. Mr. Shailendra Kumar Singh, learned counsel appearing for the petitioner has submitted that the petitioner is a Gazetted Officer of the State Government and is presently holding the post of D.C.L.R., Buxar. The petitioner who at the relevant time was holding the post of B.D.O.-cum-Circle Officer, Baikunthpur, Block, District Gopalganj, had issued a residential certificate in favour of the complainant Mithilesh Kumar Singh bearing letter No. 286 dated 26.6.2009 as a resident of village-Deokuli, Block Baikunthpur, District Gopalgnaj. The said certificate was issued on the basis of the report submitted by the Panchayat Secretary. Subsequently, a complaint was received from one Bachcha Singh of village Baikunthpur who alleged that the complainant had in connivance with the Panchayat Secretary and Revenue Karamchari, procured wrong report which formed basis for issuance of the residential certificate. The petitioner on receipt of 4 4 / 11 the complaint set up an enquiry. In the enquiry report it was reported that the name of the family members of the complainant were found in the voter list of Block Sidhwalia. The enquiry report also mentioned that Mithilesh Kumar Singh was a resident of village Budhasi, Block Sidhwalia and was employed as Nyay Mitra in Gram Kutchery, Budhasi Gram Panchayat. In view of the enquiry report, the residential certificate bearing No. 286 dated 26.6.2009 issued by the petitioner, was cancelled vide order bearing memo No. 930 dated 9.10.2009. It is the submission of learned counsel that the foundation of the complaint is the order dated 9.10.2009 cancelling the residential certificate of the complainant and thus is a motivated action. It was the submission of learned counsel that a bare reading of the complaint present at Annexure-1 would manifest that the allegations are vague and has been made in sweeping manner not constituting any offence. It is submitted that there is no specific allegation against this petitioner or against any other accused except that they collectively pushed him out of the office while abusing him and that upon protest being made by the complainant he was also physically abused. It is contended that neither the allegations are directed against any of the accused in specific nor is there any medical report on record supporting such 5 5 / 11 allegation. It was the submission of learned counsel that the criminal case instituted is attended with malafides and its continuation would be an abuse of the process of the Court. With reference to the evidence of the witnesses recorded during the enquiry under Section 202 of the Code placed at Annexure-2 series, it was submitted that the evidence of the witness runs contrary to the statement of the complainant. It was submitted that in fact there is a variance in the deposition of the two witnesses itself inasmuch as whereas the witness Dhrup Singh has charged this petitioner of physical assault on the complainant, the other witness Shashi Bhushan Kumar Singh has stated that this petitioner pushed the complainant out of the office by his neck. He thus submitted that apart from the fact that the allegations made in the complaint does not constitute any criminal offence against the petitioner, the same is also attended with malafides. It was lastly contended that no sanction has been obtained. Mr. Singh sought to question the criminal prosecution primarily on the following grounds: (a) No criminal offence is made out against this petitioner. (b) The offence if any, is very trivial nature. (c) The prosecution is malicious. (d) No sanction has been taken. 6 6 / 11 (e) There is variance in the deposition of the witnesses. (f) The witnesses are not independent witnesses rather are interested witnesses belonging to different villages. On the issue of triviality of the matter, learned counsel relied upon a Bench decision of this Court reported in 2013(1) PLJR 745. On the issue of sanction learned counsel relied upon the following decisions:- (I) 2000(3) PLJR 104 (SC) (Gauri Shankar Prasad Vs. State of Bihar & Anr.) (II) 2004(4) PLJR 89 (SC)( Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission) (III) 2000(2) PLJR 47 (Gauri Shankar Dubey Vs. State of Bihar & Anr.) The prayer of the petitioner has been opposed by the learned Additional Public Prosecutor as well as Mr. Sinha, learned Senior counsel inter alia on grounds that the issue raised by the petitioner can well be raised by him at the stage of framing of charge and that the prayer of the petitioner having been rejected by the revisional Court, this Court in exercise of inherent power would not interfere with the same. Mr. Sinha, learned Senior counsel for the complainant has submitted that the recitals of the complaint itself makes out a case 7 7 / 11 of criminal intimidation as well as body injury being caused to the complainant constituting an offence punishable under Sections 323 and 504 of the Indian Penal Code. It was submitted by Mr. Sinha that all these issues have already been raised by the petitioner before the revisional Court and the same having been rejected, the present application is in the nature of a second revision. With reference to a judgment of this Court reported in 2013(2) PLJR 604 more particularly, paragraph 5 thereof, it was submitted that second revision has been held impermissible by this Court. It was with reference to another judgment of this Court reported in 2005(4)PLJR 542 more particularly, paragraphs 4 and 11 submitted that similar view has been expressed holding a second revision not permissible. Citing a judgment of the Supreme Court reported in AIR 2009 SCW 672 (U.P. Pollution Control Board versus Bhupendra Kumar Modi) paragraph 21 it was submitted that the scope of intervention by this Court in exercise of inherent jurisdiction has been explained and it has been held that the Court would not function as a Court of appeal or revision. It was contended that the Supreme Court has held that the inherent jurisdiction of the High Court though wide, has to be exercised sparingly, carefully and with caution as also with a view to impart real and substantial justice or to prevent abuse of the 8 8 / 11 process of Court. It was submitted that the Supreme Court has held that the High Court should not embark upon an enquiry to ascertain whether a conviction can be sustained, which is the function of a trial Judge. Mr. Sinha, next referred to a judgment of the Supreme Court reported in AIR 1996 SC 204 (Anil Saran Vs. State of Bihar and another) paragraphs 8 and 9 to submit that the only relevant aspect at the stage of cognizance is, whether the materials on