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1996 DIGILAW 755 (PAT)

Purusottamal Sultania v. State of Bihar

1996-11-19

INDU PRABHA SINGH

body1996
JUDGMENT I.P. Singh, J. 1. Both the cases arise out of a common order dated 30.8.1998 passed by the Judicial Magistrate, 1st Class, Barh and as such they have been heard together and are being disposed of by this common judgment. 2. The facts leading to the case, in brief, is that petitioner Raj Kumar Makharia is the proprietor of a Petrol Pump named as Makharia Petrol Pump. One of sales man, namely, Kamleshwari Sharma gave a letter to the Officer Incharge of Hathidah police station alleging, inter alia, that he was not paid his salary by the proprietor of the petrol pump. It was recorded in Station Diary Entry No. 200 dated 10.4.1986 and on the basis of it a case under section 406 of the Indian Penal Code was registered against the petitioner, being Hathidah P.S. Case No. 21 dated 21.4.1986. During investigation the Officer Incharge of Hathidah Police station brought this petitioner on 21.4.1986 from his petrol pump to the police station. During interrogation regarding the payment of salary to one Kamleshwari Sharma the petitioner intimated that he had already paid salary to informant. In support of his version he has sent a man to Begusarai for bringing necessary document. At about 6 P M. the other petitioner and the father-in-law of the said Makharia (Cr. Rev. No. 806/88) came in a car. The petitioner, Raj Kumar Makharia on pretext of collecting the paper went near the car and thereafter Raj Kumar Makharia, petitioner along with petitioner Purusottamal Sultania fled away from police station. On the basis of his statement regarding this occurrence the Officer Incharge of Hathidah police station drew up a formal F.I.R. After investigation the police submitted charge sheet under sections 224 and 225 of the Indian Penal Code and cognizance was taken up against the petitioners. 3. Against the order of cognizance of this case the petitioners moved before this Court vide Cr. Misc. No. 10933/86 which was disposed of on 15.12.1986 with an observation that the learned Magistrate at the time of framing of charge will examine the case diary and all the relevant materials and if he comes to the conclusion that the facts constituting the offence is not made out and there is no material in support of the offence then no charge will be framed against the petitioners. Thereafter the Judicial Magistrate on 30.8.1988 after hearing the petitioners on perusal of the records including the order of the Hon'ble High Court and the case diary came to the conclusion that there was sufficient material for framing charge against the petitioners. Accordingly, the learned Magistrate directed the petitioners to be present on 14.9.1988 for framing of charge. Against this impugned order the petitioners have moved this Court. 4. The case of the petitioners is that Kamleshwari Sharma was working as a salesman at Makharia Petrol Pump service station at Hathidah and he was dismissed from his service on 2.3.1986 for his acts of omissions and commissions. After his dismissal Kamleshwari Sharma alongwith his brother Krishnadeo Singh came at the petrol pump and started hurling out threats of killing the said Makharia, where upon the said Raj Kumar Makharia lodged a Station Diary Entry No. 97 dated 4.3.1986 at Hathidah Police Station. The police after investigation reported the matter to the Sub-divisional Magistrate, Barh for initiating a proceeding under section 107 of the Code of Criminal Procedure against them. According to the petitioners the said Kamleshwari Sharma by way of counter blast wrote a letter to the Officer-in-charge, Hathidah police station alleging there in non-payment of his salary and on the basis of which a case under section 406 of the Indian Penal Code was registered. The Investigating Officer called the petitioner on 21.4.1986 for enquiry, where it was stated by the petitioner that he had already paid the salary to the informant and he also sent a man to Begusarai for bringing the necessary document regarding payment. On that day the petitioner was not detained by the police neither was arrested. They simply left the police station in the evening after interrogation. They were not obstructed by the police while they were leaving the police station. It has been alleged that only in order to harass the petitioners a case under sections 224 and 225 of the Indian Penal Code has been instituted by the police against them. 5. Learned counsel for the petitioners has submitted that since there is no mention of arrest and detention in the case diary dated 21.4.1986 appertaining to Hathidah P.S. Case No. 21/86 to justify the initiation of proceeding under section 224 of the Indian Penal Code against the petitioners, institution of case is illegal. 5. Learned counsel for the petitioners has submitted that since there is no mention of arrest and detention in the case diary dated 21.4.1986 appertaining to Hathidah P.S. Case No. 21/86 to justify the initiation of proceeding under section 224 of the Indian Penal Code against the petitioners, institution of case is illegal. It has further been submitted that since the petitioner, Raj Kumar Makharia, was not under custody section 225 of the Indian Penal Code is also not applicable to the petitioners. It has also been submitted that the occurrence took place on 21.4.1986 and the maximum punishment for the crime committed under sections 224 and 225 of the Indian Penal Code is imprisonment of 3 years with fine or without fine and for disposal of such cases Hon'ble Supreme Court has given a direction. 6. Learned counsel has drawn my attention to the case of Common Cause a Registered Society vs. Union of India, reported in A.I.R. 1996 S.C. 1619 in which such principle has been laid down for speedy disposal of the case. In this decision of the Apex Court, several categories of cases are mentioned in which there is direction for terminating them and clause 2(f) seems to be relevant for the instant case which reads as follows : "2(f) Where the cases pending in Criminal Courts under IPC or any other law for the time being in force are punishable with imprisonment upto three years with or without fine, and if such pendency is for more than two years and if in such cases trials have still not commenced, the Criminal Court shall discharge or acquit the accused, as the case may be, and close such cases. "7. In paragraph 3 of the judgment it has been clarified that for the purposes of direction contained in the above clauses the period of pendency of a criminal case shall be calculated from the date, the accused are summoned to appear in court. 8. In this case, the accused were summoned to appear on 30.10.1986 by the impugned order and since then more than 7 years have elapsed, the trial has not yet commenced as is admitted position. 8. In this case, the accused were summoned to appear on 30.10.1986 by the impugned order and since then more than 7 years have elapsed, the trial has not yet commenced as is admitted position. So in view of the direction of the Apex Court, the accused persons have to be discharged and the case must be stopped on this ground alone and it may be ordered that the petitioners in the case shall stand discharged. 9. In view of the reasons indicated above, both the petitions are allowed and the impugned order is set aside. The petitioners shall stand discharged.