====================================================== 1. Sarita Kumari, W/O- Umesh Paswan, resident of Koshikapur, P.S. Birpur District-Supaul 2 v. P.S.- Birpur, District-Supaul
Case Details
Patna High Court Cr.Misc. No.42918 of 2010 (7) dt.01-01-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.42918 of 2010 ====================================================== 1. Sarita Kumari, W/O- Umesh Paswan, resident of Koshikapur, P.S. Birpur District-Supaul 2. Shanti Devi, W/O- Pradeep Paswan, resident of Koshikapur, P.S. Birpur, District-Supaul .... .... Petitioner/s 1. The State Of Bihar 2. Raj Kishore Yadav, S/O-Rameshwar Yadav resident of Koshikapur, Versus P.S.- Birpur, District-Supaul .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Shailendra Kumar Singh For the Opposite Party/s : Mr. Bidhan Chandra Jha For the State : Mr. Dr. Rabindra Kumar (A.P.P.) ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER 7 04-01-2013 This petition under Section 482 of the Cr.P.C. has been filed for quashing the order dated 16.10.2009 passed by learned Sub Divisional Judicial Magistrate, Birpur in Birpur P.S. Case No. 29 of 2008 corresponding to G.R. No. 94 of 2008 by which and whereunder he took cognizance for the offences under Sections 166, 420, 467, 120 B/34 of the Indian Penal Code. The brief fact, which lies to file this quashing petition, is that Opposite Party No. 2 filed complaint case bearing Complaint Case No. 538 C of 2007 in the court of Sub Divisional Judicial Magistrate, Birpur and the aforesaid complaint case was
Facts
sent to concerned police station for institution of the first information report and investigation and accordingly, Birpur P.S. Patna High Court Cr.Misc. No.42918 of 2010 (7) dt.01-01-2013 Case No. 29 of 2008 under Sections 166, 420, 467, 463, 471, 120 B/34 of the Indian Penal Code was registered against the petitioners and others. The case was investigated by the police and after due investigation police submitted final form finding the accusation untrue. The learned Sub Divisional Judicial Magistrate, Birpur having perused the final form took cognizance of the offences as stated above differing with the findings of the police and passed the impugned order against which this quashing petition has been preferred. The prosecution case is that applications for appointment of Aangan Bari Sewika of Gram Panchayat Banaili Patti Koshikapur Paswan Tola were invited and accordingly, petitioner no. 1 and other candidates including the wife of Opposite Party No. 2 filed petitions and after that on 17.03.2007, general meeting was held and petitioner no. 1 was appointed on the post of Assistant without following the procedure of the appointment. Her appointment on the above stated post was protested by Opposite Party No. 2 and those persons who were present in the aforesaid meeting on the ground that she was not resident of Gram Panchayat Banaili Patti but in spite of that petitioner no. 2 and other accused appointed her on the aforesaid post. The Opposite Party No. 2 met with petitioner no. 2 and other Patna High Court Cr.Misc. No.42918 of 2010 (7) dt.01-01-2013 accused and got registered his protest but other accused demanded rupees fifty thousand from him for appointment of his wife on the above stated post and, thereafter, he gave a written complaint to Circle Officer, Basantpur who got enquired the aforesaid matter and submitted his report to Sub Divisional Magistrate, Birpur mentioning this fact that petitioner no. 1 was resident of Gram Panchayat, Bhim Nagar and the residential certificate issued in her favour was fake and after that Sub Divisional Magistrate sent the matter to C.D.P.O., Basantpur. Petitioner no. 2 knocked the door of District Magistrate, Supaul who cancelled the appointment of petitioner no. 1 which had been made on the basis of forged residential certificate and in the light of order of District Magistrate, Supaul, the C.D.P.O., Basantpur directed the petitioner no. 2 and other accused to hold fresh general meeting but petitioner no. 2 and other accused did not hold any meeting and permitted the petitioner no. 1 to continue on the above stated post and, thereafter, Opposite Party No. 2 filed the above stated complaint case before the court. Notice was issued to Opposite Party No. 2 by this Court and Opposite Party No. 2 made his appearance through his
Legal Reasoning
offences passing impugned order and it is well settled principle of law that cognizance is taken of the offence and not the offenders. In the present case, the controversy is in respect of residential certificate of the petitioner no. 1 and the prosecution’s stand is that the aforesaid residential certificate is forged whereas the stand of the petitioners is that the aforesaid residential certificate is genuine. The aforesaid question can only be decided after deeper investigation which is only possible in course of trial and, therefore, I am of the opinion that it is not a proper stage to interfere into the order of cognizance which has been taken by learned Sub Divisional Judicial Magistrate, Birpur passing impugned order. So far as non availability of materials against the petitioners in the case diary is concerned, in my view, it is not a proper stage to give any finding on the above stated plea and the aforesaid plea would be considered at appropriate stage. In view of the aforesaid discussions, this petition stands dismissed on admission stage itself. However, petitioners may raise the plea of non Patna High Court Cr.Misc. No.42918 of 2010 (7) dt.01-01-2013 availability of materials against them in the case diary at appropriate stage before the learned trial court itself and if the aforesaid plea is raised by the petitioners at appropriate stage, the learned trial court shall pass appropriate order in accordance with law without being prejudiced by this dismissal order. SHAHZAD/- (Hemant Kumar Srivastava, J)
Arguments
learned counsel and also filed counter affidavit. Learned counsel appearing for the petitioners Patna High Court Cr.Misc. No.42918 of 2010 (7) dt.01-01-2013 submits that learned Sub Divisional Judicial Magistrate, Birpur committed illegality in taking the cognizance because in course of investigation, nothing came against the petitioners to show their involvement in the present case. He further submitted that as a matter of fact after due investigation police came to the conclusion that petitioner no. 1 was residing in the house of maternal grand father of her husband since her marriage. He further submits that it also came to light that the husband of petitioner no. 1 was residing at the house of his maternal grand father after his birth and he has no concern with the village of his father and, therefore, the residential certificate issued in favour of the petitioner no. 1 was genuine. He further submits that a committee consisting of three members of government officials enquired into the issuance of residential certificate to the petitioner no. 1 and the aforesaid committee came to conclusion that the residential certificate was rightly issued in favour of the petitioner no. 1 and the aforesaid committee also found the appointment of petitioner no. 1 legal which is evident from Annexure-3 to this petition. He further submits that the District Magistrate, Supaul on the basis of report of above stated committee cancelled his previous order and confirmed the appointment of petitioner no. 1 on the post of Assistant which is evident from Annexure-4 to this petition and Patna High Court Cr.Misc. No.42918 of 2010 (7) dt.01-01-2013 after that wife of Opposite Party No. 2 preferred an appeal bearing Appeal No. 05 of 2008 before the Commissioner, Koshi Division, Saharsa who, in turn, dismissed the aforesaid appeal and also confirmed the appointment of petitioner no. 1. He further submits that all the aforesaid circumstances go to show that the residential certificate issued in favour of the petitioner no. 1 was genuine and, therefore, police rightly submitted final form in the matter showing the accusation untrue but learned Sub Divisional Judicial Magistrate, Birpur took cognizance of the offences without giving any specific reason in his order. On the other hand, learned counsel appearing for Opposite Party No. 2 refuted the above stated submissions arguing that admittedly, the husband of petitioner no. 1 was resident of Bhim Nagar but the residential certificate in favour of the petitioner no. 1 has been issued showing this fact that she is resident of Koshikapur Paswan Tola. He further submits that the orders of Commissioner, Kosi Division, Saharsa as well as District Magistrate, Supaul were challenged by wife of Opposite Party No. 2 before this Court in C.W.J.C. No. 1917 of 2008 and the aforesaid C.W.J.C. No. 1917 of 2008 was disposed of by this Court directing to place the matter before Secretary, Department of Welfare, Government of Bihar with direction to the above Patna High Court Cr.Misc. No.42918 of 2010 (7) dt.01-01-2013 stated Secretary, Department of Welfare, Government of Bihar to grant a personal hearing to the wife of Opposite Party No. 2 and then pass a reasoned and speaking order afresh in accordance with law within a maximum period of two months from the date of receipt/production of a copy of the order. He further submits that up till now Secretary, Department of Welfare, Government of Bihar has not passed any order in the matter and the controversy regarding the residential certificate issued in favour of petitioner no. 1 as well as her appointment to the post of Assistant is still sub judice and, therefore, it cannot be said that the police rightly submitted final form finding the accusation untrue. Having heard the contentions of both the parties, I have gone through the record along with case diary of Birpur P.S. Case No. 29 of 2008. The main allegation of the prosecution is that petitioner no. 1 got her appointment on the basis of fake residential certificate and according to prosecution case, she is resident of Bhim Nagar but she obtained residential certificate disclosing this fact that she is resident of Koshikapur Paswan Tola. Admittedly, the question of legality of appointment of petitioner no. 1 on the post of Assistant is still pending before the Secretary, Department of Welfare, Government of Bihar and in spite of direction of this Court the Secretary, Department of Patna High Court Cr.Misc. No.42918 of 2010 (7) dt.01-01-2013 Welfare, Government of Bihar has not passed any order within the stipulated period as fixed by this Court. Moreover, the learned Sub Divisional Judicial Magistrate, Birpur has taken cognizance of the