NAVIN SINHA @ NAVIN KUMAR SINHA v. THE STATE OF BIHAR

Sections- 323, 380 and 448, as affirmed in Cr. Revision No.578/02 by the Sessions Judge, Darbhanga on

24.7.2004. Complaint Case No.906 of 2000 came to be filed on 16.11.2006 by O.P. No.2 against the Managing Director of the Darbhanga Industrial Area Development Authority (hereinafter referred to as ‘DIADA’ for short) and the present petitioner who is the owner of the Darbhanga Off-set Printer. The allegation was that the O.P. No.2 had taken a settlement of the industrial plot from accused No.1 for establishment and running of a drug manufacturing unit. He had made a security deposity of Rs.2725/-. The annual rent was Rs.23.50/-. The lease was for 33 years. The complainant then goes on to allege that the drug manufacturing ran into 2 difficulties because of the dispute with the Drug Controller when the O.P. No.2 locked up the factory and proceeded to Nepal and started a new business there. The latter learnt that the accused persons had broken the lock of his industrial unit and forcibly put the lock of the present petitioner.

The O.P. No.2 went and met the Managing Director, DIADA, accused No.1, and asked him for necessary action when he was abused. Learned counsel for the petitioner submits that, in fact, the O.P. No.2 defaulted in compliance with the conditions of allotment leading to show-cause notices to him when ultimately the allotment was cancelled on 20.8.1996. Thereafter, in pursuance of a fresh auction the settlement was made with the petitioner and he has been put in possession thereof. Prior to the same, when the DIADA took possession of the plot to be auctioned, an inventory of the goods was also prepared by the authorities. Cognizance has been taken against the petitioner only, who is a settlee when cognizance has not been taken even against the Managing Director, DIADA, who took possession and made the subsequent settlement. Learned counsel relied upon the findings of the revisional court to urge that the materials considered themselves demonstrated that no offence is 3 made out against the petitioner.

Yet the revision application came to be dismissed. Learned counsel for O.P. No.2 submitted that whatever may be the case of the petitioner, whether he was an auction purchaser, whether he entered the premises in pursuance of the same or that the possession had earlier been taken by the DIADA individually and thereafter given to the petitioner, are all matters of defence which can be considered during the trial. Complaint Case No.906/2000 was then sent for police investigation under Section-156(3) leading to the institution of a police case. Final form came to be submitted as untrue. To this Court, the striking features of the statement made in the complaint are that there is no statement that O.P. No.2 fulfilled the conditions and terms of the allotment subject to which settlement had been made with him. He concedes that he stopped production, locked up the premises and went to Nepal where he started a new business.

Quite obviously, if the O.P. failed to abide by the settlement, locked up the premise and moved on elsewhere to start a new business, this Court does not expect him as a prudent businessman to go on paying rent or settlement charges 4 for a premises which he was not utilizing and had put a lock. Presumably, for that reason learned counsel for O.P. No.2 is not in a position to make any submissions with regard to the cancellation of the allotment done by the DIADA, preparation of the inventory, taking of possession thereof and subsequent auction when the settlement was made with the petitioner. Time and again the courts have held that issuance of summons and taking cognizance is a serious matter. If a person, accused of an offence is put to trials and tribulations for which he cannot be compensated if ultimately it turns out that the allegations were not sustainable. It is not as if a person has to file a complaint, an enquiry is held and summons mechanically issued.

Similar would be the case where a final form is submitted by the police after investigation. Undoubtedly, the Magistrate has the jurisdiction in law to differ with such final report and take cognizance. But, there must be substantive materials for the same raising bona fide questions in the mind of the Magistrate. Surely, the Magistrate is not required to write a detailed judgement at this stage for reasons of difference of opinion with the final form. Nonetheless, it would be conducive to dispensation of justice if briefly reasons are recorded as to why cognizance was being taken differing with the final 5 report. A mere rhetorical incantation of one paragraph after another of the case diary shall not suffice. The petitioner is an auction-purchaser from the DIADA. It is the latter which made the settlement with O.P. No.2. The allegations are that when the O.P. No.2 went to the office of the DIADA, the accused No.1 abused him and refused to talk to him.

More surprisingly, no cognizance has been taken against him. If the allegations against the petitioner are considered, the first act was on part of accused No.1. It is on the ladder of his action that the petitioner has stepped on. Surely if cognizance was taken against the petitioner, cognizance should have been taken against accused No.1 also. The learned Magistrate refers to paragraph Nos.6,10 and 36 as sufficient materials for taking cognizance. What are the sufficient materials is to be found in the revisional order when the revisional court says from paragraph-9 to 29 of the case diary it was clear that the unit owned and possessed by the O.P. No.2 was taken over by the DIADA. As the informant did not pay the rent and did not observe the formality of the rules and for settlement whereafter the authorities settled the land in favour of the petitioner. Yet the revisional court comes to the conclusion that he could interfere if the allegations were absurd and improbable.