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2000 DIGILAW 344 (PAT)

B. K. Dey v. P. Appa Rao

2000-03-02

ANIL KUMAR SINHA

body2000
Judgment ANIL KUMAR SINHA, J. 1. The present application has been filed for quashing the entire criminal prosecution under Sections 348, 500/34 of the Indian Penal Code including the order taking cognizance dated 7.1.1998 in Complaint Case No. C/1 Case No. 571 of 1997 passed by Sri K.K. Singh, Judicial Magistrate, Jamshedpur, whereby he took cognizance against the petitioners under the aforesaid counts. 2. The complainant/opposite party No. 1 has filed a complaint case against the petitioners stating therein that on 8.10.1996 when he was on duty, the petitioner No. 6 Bindhya Chal Singh asked him to come to I.D.S. officer along with his scooter bearing No. BR-16F-0405 and when he went to the I.D.S. office the petitioners charged him of theft of Company properties to which the informant pleaded his innocence. A domestic inquiry was also held, which was concluded on 4.7.1997 in respect of the alleged theft committed by the complainant. In course of enquiry the charge sheet was given to the complainant on 1.11.1996 and the enquiry concluded on 24.11.1997, which was one sided. The complainant claimed that he had no personal knowledge that from where the so called Tradle Value came from as those tradle values are used in Forge Division which is at a distance of 1/2 kilometre from the place where the complainant was posted. It is alleged that the petitioners forced the complainant to sign few papers of which the complainant had no knowledge and he was not allowed to leave the I.D.S. office for about 5 to 6 hours and was confined in the room by the petitioners where he was coerced and threatened to sign some papers which were prepared by the Security Incharge. The complainant has also alleged that the inquiry was not conducted in fair manner and the petitioners spread a false rumour in the company and amongst the co-workers that the complainant is a "thief" on account of which the complainant and his family members suffered loss of prestige. It was, therefore, prayed to the Court to take cognizance under Sections 348, 500/34 of the Indian Penal Code against the petitioners. 3. An inquiry under Section 202 of the Code of Criminal Procedure was conducted by Sri K.K. Singh, Judicial Magistrate, Jamshedpur, who took cognizance in the case under Sections 348, 500/34 of the Indian Penal Code and passed order for issuing summonses upon the petitioners. 4. 3. An inquiry under Section 202 of the Code of Criminal Procedure was conducted by Sri K.K. Singh, Judicial Magistrate, Jamshedpur, who took cognizance in the case under Sections 348, 500/34 of the Indian Penal Code and passed order for issuing summonses upon the petitioners. 4. Being aggrieved with the impugned order of cognizance passed by the learned Magistrate, the present application has been filed on the ground that the petitioners are officers and employees of Security Department of Telco Co. It is stated that on 8.10.1996 the complainant/opposite party No. 1 was in shift duty from 6 a.m. to 2.30 p.m. and he was caught red-handed at the Telco Gate No. 1 by Sri Bindhya Chal Singh at about 10 a.m. when the complainant was seeking exit at around 10.00 a.m. on his scooter bearing No. BR-16F-0405 with stolen materials belonging to the Co. valued at Rs. 2,315/-. After being caught red-handed with the stolen materials of the Company, a preliminary inquiry was conducted at I.D.S. office by the Security Inspector, Ranjit Kumar Singh (Petitioner No. 4) and the complainant admitted that he had collected the materials from the Forge Department, which he attempted to take out for his personal gain. As per the practice and procedure of the Company seizure-list was prepared in presence of two independent witnesses on which the complainant also put his signature. His statement was also recorded whereby he admitted his guilt and subsequently, he was discharged from the service. It has also been stated that the complainant/opposite party No. 1 instituted the criminal case against the petitioners after a lapse of 14 months to prepare his defence with ulterior motive for wreaking vengeance against the petitioners. It is further stated that the statement of complainant on S.A. examination and the depositions of the witnesses do not constitute any offence and the materials on record prove that it is a case of illegal and vexatious prosecution of the petitioners with mala fide motive in order to put pressure upon the Management for taking the complainant in service again. It is also contended that the entire acts were done by the petitioners in discharging their official duties in protecting the interest of their employer and there cannot be any mens rea for committing any offence and the allegations are absurd and inherently improbable. It is also contended that the entire acts were done by the petitioners in discharging their official duties in protecting the interest of their employer and there cannot be any mens rea for committing any offence and the allegations are absurd and inherently improbable. It has, therefore, been prayed that the criminal prosecution of the petitioners is an abuse of the process of law, which deserves to be quashed. 5. The learned Magistrate passed the following orders while taking cognizance, which may usefully be quoted as hereunder : "Order dated :7.1.1998 Attendance on behalf of the complainant is filed. Perused the case record including complaint-petition, S.A. examination of the complainant and the statements of two witnesses Ram Ekbal Pandit and Jai Prakash Pandey as well as the photo copy of the letter dated 8.11.1996 letter dated 8.12.1996, dated 30.1.1996, 18.4.1997, 3.5.1997, 19.5.1997 and 29.10.1997. These all disclose that the accused-persons B.K. Dey, B. Sinha, K. Jai Ram, Rajat Kumar, R.B. Singh, Bindhya Chal Singh and Gorakh Pd. Singh has done such act which make prima facie against them triable under Sections 348, 500/34, IPC. The complaint is directed to submit necessary requisites since 22.1.1998 for issuance of summons upon accused-person. Then o/c is to issue the same. Sd. S.K.Singh. J.M." 6. It is the admitted position that the alleged occurrence of theft took place on 8.10.1996 whereas the complaint-petition was filed on 1.12.1997 after the dismissal of complainant from service and conclusion of the inquiry which was conducted by the Company. No explanation whatsoever has been given for the undue delay of 14 months in filing the complaint-petition which may render the prosecution story doubtful, but that cannot be a ground for quashing the order of cognizance. 7. First of all, it may be necessary to see that a prima facie case under Sections 500/34 of the Indian Penal Code is made out or not even if the materials on record is accepted as it is. In his S.A. examination, the complainant has stated that when he was going out for lunch on the alleged date of occurrence, he was stopped by Bindhyachal Singh who took him to I.D.S. room and materials were recovered from his scooter bearing No. BR-16F-0405 on which he raised objection that why his scooter was not checked at Gate No. 1. In his S.A. examination, the complainant has stated that when he was going out for lunch on the alleged date of occurrence, he was stopped by Bindhyachal Singh who took him to I.D.S. room and materials were recovered from his scooter bearing No. BR-16F-0405 on which he raised objection that why his scooter was not checked at Gate No. 1. He stated that a paper was prepared on which he was forced to put his signature without giving a copy of it to him and on 1.11.1996, he was issued with charge-sheet in the enquiry proceeding. He further stated that seized materials belonged to the Forge Division which is situated at a distance of 1/2 km. from the place of his duty and he cannot take his vehicle to another department without permission nor he can leave his duty without entering that fact in the log-book. He further stated that no body actually saw him committing theft and the inquiry was conducted in ex parte manner on account of which he suffered insult. He has no where stated in his S.A. examination that the petitioners spread any rumour in the company or amongst his followers that the complainant is a thief as alleged in the complaint-petition. The other two witnesses examined on behalf of the complainant are all hearsay witnesses to whom the complainant himself narrated that the security personnel took him to their office where his signature was obtained on certain papers. Both of them have admitted that they had no personal knowledge about the occurrence or the subsequent event. They learnt about the false implication of the complainant from his mouth. 8. The learned counsel for the petitioners submitted at the very outset that from the facts stated in the complaint petition, it is manifest that the complainant filed the complaint-petition after lapse of 14 months, after he was discharged from the service with ulterior motive for wreaking vengeance on the accused due to his personal grudge because he was caught red-handed with stolen property belonging to the Company and the petitioners, who are all officers of the Company conduced enquiry in accordance with the practice and procedure of the Company. It was further submitted that the mala fide intention in filing the complaint-petition is clear from the complaint-petition itself as the complaint wants to create defence in his case and by adopting such tactics wants that he should be taken back in service. It was further submitted that although no offence under Sections 348/500/34 of the Indian Penal Code has been made out against the petitioners on the basis of the S.A. examination and the evidence of the hear say witnesses recorded in course of inquiry under Section 202 of the Code of Criminal Procedure, but the learned Magistrate has taken cognizance against the petitioners under the aforesaid counts in a mechanical manner. It was, therefore, submitted that the prosecution of the petitioners is an abuse of the process of the Court which deserves to be quashed. The learned counsel has relied upon the decision of State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604 , wherein it has been held that : "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 extra ordinary 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 formulas, and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the First 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 and make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR 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. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR 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 FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation 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 in the FIR or complaint are so absurd and inherently improbable on the basis of which no prodent 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 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. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the 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." 9. The learned Counsel also relied upon the decision of the case of M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, AIR 1998 SC 128 : 1998 (1) East Cr C 171 (SC), wherein it has been held that : "Summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that he sufficient for the complainant to succeed in bringing charge home to the accused. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of criminal trial." 10. Relying upon the aforesaid two decisions, the learned counsel appearing for the petitioners submitted that the aforesaid decisions are fully applicable in the facts and circumstances of the present case, inasmuch, as the impugned order by which the learned Magistrate has taken cognizance does not reflect that he has applied his mind to the facts of the case applicable thereto and his order is quite vague and does not show that whether the statements of the complainant on S.A. examination and the evidences of two witnesses recorded by him in course of inquiry under Section 202 of the Code of Criminal Procedure did constitute the offence under Sections 348/500/34 of the Indian Penal Code, although the facts remain that no offence under the aforesaid count was made out. 11. On the other hand, the learned counsel for the opposite party No. 1/ complainant submitted that the order of cognizance cannot be quashed as it involves the question of fact, which cannot be gone into by this Court in the present application. 12. 11. On the other hand, the learned counsel for the opposite party No. 1/ complainant submitted that the order of cognizance cannot be quashed as it involves the question of fact, which cannot be gone into by this Court in the present application. 12. After carefully examining the materials on record and hearing the learned counsel for the parties, I am of the view that no offence under Sections 500/34 of the Indian Penal Code is made out against the petitioners on the basis of the statements made by the complainant in his S.A. examination or on the basis of the evidence of PWs. 1, and PW 2. Similarly the statement of the complainant on S.A. examination and the evidences of the witnesses do not constitute any offence against the petitioners under Section 348 of the Indian Penal Code because the alleged acts were done by the petitioners in discharge of their official duties according to the practice and procedure of the Company, which the petitioners were bound to do and certainly they had no mens rea for committing any offence under Section 348 of the Indian Penal Code. In fact, there was no wrongful confinement at all nor there is any ingredient of extortion from the complainant so that it can be said that an offence under Section 348, IPC has been made out against the petitioners. It appears from the facts and circumstances of the case that the complainant has filed the complaint against the petitioners with mala fide motive after a lapse of 14 months when he was discharged from his service for wreaking vengeance on the petitioners who were involved in conducting enquiry against him which ultimately led to the dismissal of the complainant. Therefore, relying upon the ratios of the decisions in the case of Bhajan Lal and Pepsi Foods (supra), I am of the view that the impugned order dated 7.1.1998 passed by the learned Court below, where by he took cognizance against the petitioners is nothing but an abuse of the process of Court, which deserves to be quashed. 13. In the result, therefore, the order dated 7.1.1998 passed by the Court below in Complaint Case No. C/1 Case No. 571 of 1997 is quashed and the entire criminal proceedings against the petitioners in the aforesaid case are hereby quashed. 14. This application is, accordingly, allowed.