Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.7804 of 2013 ====================================================== Surendra Nath Singh, S/o Late Jhulan Prasad Singh @ Jhulan Singh, R/o Village-Bambhai, P.S.-Karpi, District-Arwal (Bihar). Versus .... .... Petitioner The State of Bihar .... .... Opposite Party ====================================================== Appearance : For the Petitioner : Mr. Sandeep Kumar & Mr. Mukesh, Advocates. For the State : Ms. Dr. Indiwar Kumari, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER 6. 04-10-2013 Heard learned counsel for the petitioner and learned A.P.P. for the State. The present application under Section 482 of the Code, 1973 (hereinafter referred to as the ‘Code’) seeks quashing of the order dated 05.08.2011 by which cognizance has been taken against the petitioner under Sections 141/143/144 of the Indian Penal Code in connection with Karpi P.S. Case No. 76 of 2010/G.R. No. 1482 of 2010/2767 of 2012, by the Judicial Magistrate 1st Class, Jehanabad. The allegation against the petitioner is that he, along with others, had assembled at the spot where the police force along with labourers were trying to remove encroachment pursuant to the order of the High Court and had tried to create obstacles in the same. Learned counsel for the petitioner submits 2
Legal Reasoning
Patna High Court Cr.Misc. No.7804 of 2013 (6) dt.04-10-2013 2 / 5 that even if the entire allegation, as has been stated in the F.I.R. is accepted on its face value, still no offence is made out as no specific overt act has been alleged against the petitioner and it has only been said that the petitioner along with five other named persons and 15-20 unknown persons had come to the spot and abused the labourers who were trying to make certain construction, whereas there is allegation against other six named accused that they had been creating obstruction in getting such wall demolished. Learned counsel submits that the allegation is baseless and in fact made with mala fide intention for oblique reasons. He has relied on Annexure-2, which is copy of order dated 03.03.2010, passed by a Division Bench of this Court, in C.W.J.C. No. 273 of 2010, which was filed by the petitioner, seeking removal of encroachment in a canal. The said case was disposed off in view of the stand taken by the State Government that steps would be taken to remove the encroachment by end of April, 2010 after Rabi crops are over. Learned counsel draws the attention of this Court to the statement made in the F.I.R. in which it is stated that the police force along with labourers had gone to the spot in connection with the order of the High Court, which according to him is the one dated 03.03.2010 passed in
Legal Reasoning
C.W.J.C. No. 273 of 2010. Learned counsel submits that the petitioner had filed the said case for removal of encroachment from the canal and thus the action of the authority in 3 Patna High Court Cr.Misc. No.7804 of 2013 (6) dt.04-10-2013 3 / 5 implementing the order could not have been opposed by the petitioner and the allegations are totally misplaced and false. Learned counsel submits that the petitioner, being the resident of that place, was present at the time when the authorities were implementing the order of the High Court and because the other group was objecting to the same, in a casual manner, the allegations have been made against the petitioner also and it is an irony that relating to the order passed by the High Court in case filed by the petitioner, he is being accused of trying to prevent such order being implemented. Learned counsel submits that both the submission of the charge sheet against the petitioner by the police under Sections 141 and 142 of the Indian Penal Code and taking cognizance under the said Sections by the Court concerned, is absolutely without any application of mind, since Section 141 of the Indian Penal Code defines unlawful assembly and Section 142 of the Indian Penal Code defines a member of the unlawful assembly, which cannot be charging Sections and only Section 143 of the Indian Penal Code deals with punishment. It is further submitted that the petitioner is a law abiding senior citizen. Thus, learned counsel submits that the order impugned taking cognizance against the petitioner under the aforesaid Sections cannot be sustained, both on facts as well as in law. Learned A.P.P. for the State submits that in the entire case diary, except for the initial allegation being 4 Patna High Court Cr.Misc. No.7804 of 2013 (6) dt.04-10-2013 4 / 5 reiterated in the restatement of the informant, no other material has come to show that the petitioner is guilty under the aforesaid charged Sections. Pursuant to the order of this Court, the case diary of Karpi P.S. Case No. 76 of 2010 was called for. The same has since been received. A counter affidavit has also been filed on behalf of the Superintendent of Police, Arwal in which there is only reiteration of the fact that while the direction for removal of encroachment was there, the named accused in the F.I.R. had formed unlawful assembly armed with deadly weapons causing obstruction by using criminal force to deter a public servant from discharging his duty. Upon considering the rival contentions, this Court finds substance in the submissions of learned counsel for the petitioner. From the bald allegation made against the petitioner that he prevented the labourers from constructing the wall, there is no other material to show or justify either submission of charge-sheet against him or taking cognizance by the Court concerned. This Court further finds that the fact of the petitioner having considered, certain removal of the encroachment and pursuant to the order of this Court, the encroachment being removed, it cannot be believed that he would obstruct in the same. Thus, this Court finds that the present criminal proceeding against the petitioner is an abuse of the process of the Court and accordingly, the entire criminal 5 Patna High Court Cr.Misc. No.7804 of 2013 (6) dt.04-10-2013 5 / 5 proceeding arising out of Karpi P.S. Case No.76 of 2010/G.R. No. 1482 of 2010/2767 of 2012, as well as the order taking cognizance dated 05.08.2011, as far as it relates to the petitioner, is quashed. The application stands allowed. (Ahsanuddin Amanullah, J.) Anand Kr.