Patna High Court · 2011
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.19934 of 2011 ====================================================== 1. Sanjeev Kumar @ Sanjeeb Kumar @ Tuntun, S/O Rajeev Ranjan @ Rajeev Ranjan Sharma, R/O Vill. Mohiappa, P.S. Matihani, Distt. Begusarai 2. Rajeev Ranjan @ Rajeeb Ranjan Sharma, S/O Late Ram Sagar Sharma, R/O Vill. Mohiappa, P.S. Matihani, Distt. Begusarai 3. Guneshwar Kunwar, S/O Late Dhanik Kunwar, R/O Vill. Mohiappa, P.S. Matihani, Distt. Begusarai Versus .... .... Petitioner/s 1. The State of Bihar 2. Mahanth Ram Kumar Das Shastri Chela Mahanth Sri Tribhuwan Das Purani Thakurbari, Maniappa, R/O P.S. Matihani, Distt. Begusarai .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Deepak Kumar, Advocate. For the Opposite Party No.2:Mr. Pramod Mishra, Advocate. Mr. Arun Kumar, Advocate. For the State : Dr. Mayanand Jha, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY CAV ORDER 6 30.1.2013 Heard learned counsel for the petitioners, for the State and for opposite party no.2. 2. In this case, petitioners are challenging the order dated 3rd May 2011 by which the revisional court rejected Cr. Rev. No. 49 of 2011 whereby and whereunder the court below has affirmed the order of cognizance dated 6th January 2011 passed in Complaint Case No. 1780C of 2010. 3. Basically in this case effort has been made to keep in occupation the Thakurbari. In the complaint petition, it has been alleged that on 3rd July 2010 at about 7 P.M. while Patna High Court Cr.Misc. No.19934 of 2011 (6) 2 he was sitting in the courtyard of the temple and was engaged in giving religious discourse, 5-7 unknown criminals entered into the campus of the temple and they started using the abusing language and asked the complainant opposite party 2 to vacate the premises of the temple as the injunction petition filed in T.S. No. 70 of 2006 has been rejected. It has been alleged that Petitioner Nos. 1, 2 and 3 put a Gamchha around his neck and started pulling him out of the premises and other accused persons started assaulting him with fists and leg. With the intervention of witnesses, the life of the complainant opposite party no.2 could be saved. It has been alleged Sanjay Kumar Sinha and Rajiv Ranjan Verma had obtained written commitment dated 11.9.2006 where the complainant had assured to vacate the premises and further alleged of obtaining signature on plain register. It has been alleged, the complainant would recapitulate, the accused persons had forcibly obtained his signature. It has been alleged that Rajiv Ranjan Sharma had taken away the valuable articles from the premises and it has further been alleged that Sanjay Kumar Sinha with the intention to commit theft taken the antique statue of Lord
Legal Reasoning
Patna High Court Cr.Misc. No.19934 of 2011 (6) 3 Krishna having a price of Rs.1,00,000/- (one lac) and narrated that they had come to evict him from the premises in pursuance of the order passed by the competent authority of the Religious Trust. On the basis of the complaint petition the court took cognizance for the offences u/s 341, 3232 and 380 of the Indian Penal Code and issued summonses for their appearance. This order of cognizance was challenged in revision and the revisional court affirmed the said order. 4. Counsel for the petitioner submitted that the present case is completely a malicious prosecution as the Chairman of Bihar Religious Trust Board (hereinafter referred to as the „Trust Board‟) vide order dated 23rd February 2007 (Annexure-3) removed the complainant from the Sebaitship of the Thakurbari and directed Sub Divisional Officer vide order dated 23rd February 2007 (Annexure-4) to take charge from the opposite party no.2. The Sub-Divisional Officer, Begusarai vide order dated 10th July 2010 (Annexure-5) asked the Statistical Officer to take over the property of the trust (Thakurbari) and against that order, the O.P.No.2 filed a title suit sought relief of permanent injunction and a petition for temporary injunction was filed which was rejected and the same was challenged Patna High Court Cr.Misc. No.19934 of 2011 (6) 4 in Misc. Appeal No. 2 of 2008 which was dismissed by the competent court. 5. Counsel for the petitioners submitted after removal of complainant they were appointed by Bihar State Religious Trust Board as the Member of the trust Committee of the said Public Trust and as per the direction all the petitioners had gone there to take charge but the opposite party no.2 with a view to keep in possession of Thakurbari has filed the present complaint case and made frivolous allegation against all the petitioners. He has further submitted that as per the order of the Board, he was no longer Sebait of that trust and, as such, he was not required to remain present in the premises. 6. Counsel for the petitioners has further brought to the notice of this Court letter dated 12th October 2007 passed by the Bihar State Religious Trust Board (hereinafter referred to as the‟Trust Board‟) where the Administrator–cum- Executive Officer empowered the committee to appoint fresh Pujari as opposite party no.2 has already been removed from the post of Pujari of the said trust. Counsel for the petitioner submits that when the opposite party no.2 was removed from Shebaitship as well as from the post of Pujari Patna High Court Cr.Misc. No.19934 of 2011 (6) 5 of the Thakurbari, there was no occasion for him to remain present there and his presence in Thakurbari itself was illegal. 7. Counsel for the petitioner submits that it is out and out a malicious prosecution and order of cognizance is liable to be quashed. 8. On contra, counsel for opposite party no. 2 has submitted that while considering the injunction petition the court below vide order dated 4th April 2008 has recorded a finding that opposite party no. 2 admittedly was Pujari of the temple after death of Ram Nath Das. The court has also recorded that the appellant was a convict by a court of competent jurisdiction and he was awarded a sentence and for that reason he remained absent from the Thakurbari and the said committee appointed by Trust Board got possession over four rooms and some articles were also handed over by opposite party no. 2 to the Executive Committee but the Pooja-Path, Rajbhog and management of the temple was not under the control of the O.P.No.2. 9. Counsel for opposite party no.2 submitted order of cognizance has been taken against the petitioners on the basis of material on record so much so that the Circle Patna High Court Cr.Misc. No.19934 of 2011 (6) 6 Officer vide letter no.2016 of 2009 (Annexure-A) found the opposite party no.2 in possession of Thakurbari. 10. Counsel for opposite party no.2 submitted that it is nothing but a second revision which is not maintainable in law and it is well known principle of law that the order of cognizance is taken on the basis of prima-facie case based on materials brought on record. 11.
Legal Reasoning
Basically the contention has been raised of malicious prosecution by the complainant against the petitioners who were appointed as the member of the Managing Committee by the Administrator of the Trust Board. It has been alleged that the case was filed with sole purpose to keep in possession the Thakurbari in question as he was illegally occupying the Thakurbari even though he was removed from the Sebait as well as from the service of Pujari. In support of his contention counsel for the petitioner has drawn the attention to the letter dated 23.2.2007 which was issued by Administrator-cum-Special Officer of the Trust Board addressed to the complainant where it has been mentioned that his service as Pujari has been terminated on 21.1.2006 after his conviction by the Criminal court as he was convicted person did not hold the requisite qualification Patna High Court Cr.Misc. No.19934 of 2011 (6) 7 of Mahanth of the Thakurwari and in exercise of power under Sections 28(2)(h)(i) of the Bihar Religious Trust Act the complainant was removed from the post of Mahanth and after his removal, the Administrator of the trust Board vide letter dated 23.2.2007 appointed the Sub Divisional Officer, Begusarai as temporary trustee for six months and requested to take charge of the said Thakurbari. In pursuance of the said letter the Sub Divisional Officer, Begusarai asked the complaint to hand over the charge and possession of the said Thakurbari to Sanjay Kumar Sinha. In pursuance thereof he handed over the possession of four rooms and had given an undertaking on 26.6.2207 to hand over the possession of rest portion of the Thakurbari by 3.7.2007, on his retraction, the Sub divisional Officer, Begusarai vide letter dated 10.7.2007 (Annexure-5 to the petition) asked the complainant to report to the office on 13.7.2007 by 11.30 A.M. and to hand over the possession to Sanjay Kumar Sinha otherwise a legal action would be taken against him. It also appears from the record that the complainant had filed title suit vide Title Suit No. 70of 2006 and in the suit an application for injunction was filed but the trial court refused to grant injunction, whereupon the complainant filed an appeal vide Misc. Patna High Court Cr.Misc. No.19934 of 2011 (6) 8 Appeal No.2 of 2008 which was also dismissed and while deciding the case the appellate authority by way of finding of fact has recorded in paragraph 5 that the complainant was Pujari of the said temple after the death of Mahanth Ram Nath Das but later on he was convicted in a criminal case and remained absent from the temple and the Committee got possession over four rooms and some articles were also handed over by the appellant-plaintiff to the executive Committee and the work of Puja-Path, Raj-Bhog and management of the temple was not in the control of the appellant (complainant). 12. It also appears from the record that a notification was issued by the Trust Board dated 12.10.2007whereby it has been declared that the complainant was removed from the post of Pujari as having bad antecedent was convicted in a criminal case and accordingly Managing Committee was constituted where the petitioners were inducted as members. At the same time by the said letter the Board has framed a scheme for the proper management of the Thakurbari. 13. Learned counsel for opposite party no.2 has also filed a counter affidavit to show that he was in possession of the Thakurbari and accused persons have illegally entered Patna High Court Cr.Misc. No.19934 of 2011 (6) 9 into Thakurbari forcibly tried to evict from there while he was engaged in religious discourse and while doing so the accused persons have surrounded his neck with the Turban and tried to evict him from there. In support of his contention he annexed the letter of Circle Officer, Matihani addressed to the Sub Divisional Officer, Begusarai dated 20.6.2009 to show that he was Sebait of the Thakurbari as he was appointed by member of Ramnandi sect and has also annexed the residential certificate including the rent receipt which was issued in his favour. 14. On examination of the document it is apparent that the complainant was made an accused in a criminal case and he was convicted by the court of competent jurisdiction. It is also a fact that the Administrator, Bihar State Religious Trust Board removed him from the post of Mahanth as well as on Pujari and in pursuance thereof he had handed over the possession of four rooms and had given an undertaking to hand over the possession of rest portion of the Thakurbari. It appears that the complainant being a criminal wanted to keep Thakurbari in possession and resisted to hand over the possession of rest portion of the Thakurbari though he had handed over the possession of four rooms without any Patna High Court Cr.Misc. No.19934 of 2011 (6) 10 demur. It appears that when he felt the administrative heat for taking action against him at the same time he was bent upon to keep the possession of the Thakurbari filed the present complaint case in the year 2010. When he could not get any relief of injunction by the civil court used his last weapon from his arsenal by filing the present case. It appears from the complaint petition itself that he was removed by the Trust Board from the post of Mahanth as well as Pujari of Thakurbari and handed over possession of four rooms including he had given an undertaking on 26.6.2007 to vacate the rest portion of Thakurbari. In paragraph 4 the complainant had stated that on 11.9.2006 the accused persons had obtained signature on two blank papers and also on blank register and later on they created the document. 15. On conspectus of the aforesaid fact and attending circumstances this Court feels that the complainant opposite party no.2 has filed the present case with a malicious intention to falsely implicate these persons so that he remained in possession of Thakurbari without any disturbance from any corner. The Hon‟ble Supreme Court in the case of State of Haryana and others Vrs. Bhajan Lal and Patna High Court Cr.Misc. No.19934 of 2011 (6) 11 others, reported in A.I.R. 1992 SC 604 has cataloged by way of illustration of seven grounds where the High Court under inherent jurisdiction can interfere with the criminal proceeding. It will be relevant to quote paragraph 108 of the said judgment: “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the First in Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not the allegations made Patna High Court Cr.Misc. No.19934 of 2011 (6) 12 no investigation constitute a cognizable offence but constitute only a non-cognizable offence, is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. is manifestly 7. Where a criminal proceeding the attended with mala proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” fide and/ or where 16. The aforesaid view has been reiterated in the case of Indra Mohan Goswami Vs. State of Uttar Pradesh, reported in 2007(12) SCC 1. In view of the fact as stated hereinabove it appears to this Court that the present case completely fits in item no.7 where the Hon‟ble Supreme Court is of the view that in a case of malicious prosecution the court should come forward and to protect the innocent person as the continuation of the proceeding will give a premium to a wrong person. On conspectus of the facts as stated hereinabove it is amply clear, when opposite party Patna High Court Cr.Misc. No.19934 of 2011 (6) 13 no.2 was removed from the post of Mahanth as well as from the post of Pujari he filed a title suit where he failed looking no other way out but to keep in possession of Thakurbari implicate petitioners in a criminal case who were asked to take possession of the said Thakurbari. 17. In view of the fact stated hereinabove this Court is of the view that the present case is a malicious prosecution and accordingly the order of cognizance dated 6.1.2011 passed in Complaint Case No. 1780C of 2010 as well as the order dated 3.5.2011 passed in Criminal Revision No.49 of 2011 are hereby quashed. 18. Accordingly this application is allowed. Vinay/- (Shivaji Pandey, J)