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1997 DIGILAW 791 (PAT)

Retd. Brig. M. D. Kamath v. State Of Bihar

1997-11-05

P.K.DEB

body1997
Judgment P.K.Deb, J. 1. Both the applications are taken up together for admission as the parties are same and both the cases arise out of the same case. 2. At the very first instance, the petitioner is directed to strike down the respondent No. 2 from this writ petition and also strike down the allegations brought against the respondent No. 2 in this writ petition. The learned counsel for the petitioners agreed to strike down the same. 3. This writ petition has been filed for issuance of appropriate direction for quashing the order dated 30.9.1997 passed by the Sub-Divisional Judicial Magistrate, Bermo at Tenughat in C.P. Case No, 13/96 (T.R. 727/96). The respondent No. 3 Hemalata Trehan had filed the above mentioned complaint case with various allegation of embezzlement of the scraper by the petitioners which was purchased by a Company in which respondent No. 3 was vitally interested. After examining the respondent No. 3 and her witnesses, cognizance of the offences were taken under Sections 379,406,409, 427/34, IPC vide order dated 22.6.1996 and process were issued against the petitioners. Some of the petitioners are the high officials of the Damodar Valley Corporation. 4. It is the contention of the petitioners that they were not in the scene of the occurrence as alleged at the time of alleged embezzlement but still only to harass, they have been made parties. It is also contended from the side of the petitioners that contents in the complaint petition can only attract civil liability at best and no criminality can be imposed on any of the petitioners, who have been made accused in the case. After the summons were issued, it appears from the order-sheet filed in the case that a petition was filed for and on behalf of the petitioners under Section 205. Cr PC for their representation but the said prayer was rejected by the learned S.D.J.M., Bermo at Tenughat vide order dated 20.11.1996 and direction was given for appearance of the petitioners before him. It further appears from the order-sheet that the petitioners did not appear and mechanically the case went on running mentioning that the compliant is absent and further dates are being fixed for appearance of the accused persons but no appearance was made. It further appears from the order-sheet that the petitioners did not appear and mechanically the case went on running mentioning that the compliant is absent and further dates are being fixed for appearance of the accused persons but no appearance was made. By the last order, date was fixed on 4.10.1997 for appearance of the accused-petitioners but before that date could reach, a petition was filed from the side of the respondent No. 3 that the petitioners were avoidina to appear in the Court and hence by order dated 30.9.1997, the learned S.D.J.M., allowed the prayer of the complainant and issued warrant of Arrest against the petitioners. The contention of the petitioners is that when a future date had been fixed for appearance of the petitioners, there was no earthly reason for the S.D.J.M., Tenughat to issue Warrant of Arrest in the meantime and at least the S.D.J.M. could wait up to 4.10.1997. which was the date fixed for appearance of the petitioners. 5. Apparently on the face of it, it appears that the order passed on 30.9.1997 was not proper when a future date was fixed earlier for appearance of the petitioner but laches on the part of the petitioner can also not be over looked. When the petition under Section 205, Cr PC was rejected long back in the year 1996, no steps were taken from the side of the petitioners either to challenge that order or to make appearance abiding by the orders before the S.D.J.M.. The order passed on 30.9.1997, if would have been passed on the date fixed in the case, then perhaps, the petitioners would have no grievance to come up before this Court. The dilatory tactics taken by the petitioners can also not be over looked. But as the order dated 30.9.1997 is definitely not proper on the face of the record and as mentioned above, the said order is hereby quashed and the petitioners are hereby directed to appear before the S.D.J.M.. Bermo at Tenughat on or before 24th November, 1997. On their appearance, the learned Court below shall consider their bail and then proceed according to law. If any petition is filed under Section 317 Cr PC, the same may also be considered by the Court below for future date fixed in the case. 6. As regards quashing matter regarding cognizance being taken. On their appearance, the learned Court below shall consider their bail and then proceed according to law. If any petition is filed under Section 317 Cr PC, the same may also be considered by the Court below for future date fixed in the case. 6. As regards quashing matter regarding cognizance being taken. I am not going to enter into the matter at this stage. However, the petitioners shall be at liberty to raise their grievance at appropriate stage before the trying Magistrate. 7. Both the petitions are disposed of.