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2004 DIGILAW 1132 (PAT)

Md. Yunus v. State Of Bihar

2004-11-09

R.S.GARG

body2004
Judgment 1. The Superintendent of Police, concerned Police Officer and the Sub-Divisional Magistrate are present in the Court. Counsel for the petitioner and counsel for the State are also heard. Also heard Shri S.S. Dwivedi, learned senior counsel for the intervenors. 2. The intervenors have submitted that as they have been dispossessed from the house which was in fact belonging to them they be allowed to intervene in the matter. It is also the case of the intervenors that 1 katha 4 dhur land only was attached and in execution of the orders passed in Cr.W.J.C. No. 617 of 2000 the intervenors and others are sought to be evicted from the land/residential premises, which were not the part of the earlier litigation, they are entitled to be heard. They have also filed an application for restoration of the possession. With the application for restoration of possession no documents have been filed to show that what particular piece of land was attached, whether there was any house standing or not or whether the intervenors have any right over the property. The intervenors are allowed to intervene in the matter but in absence of proper details in the application for recall of the order, I am unable to grant any relief to these intervenors. If advised the intervenors may file a detailed application alongwith necessary documents and their title deeds enabling this Court to appreciate that they have been illegally removed from the possession of the house. 3. On 5.11.2004 this Court found that despite lodgment of a report by the Sub-Divisional Magistrate at Police Station Govindganj the concerned Incharge of the Police Station was not taking any action, this Court required the Superintendent of Police, the Incharge of the Police Station to appear in the Court and submit their say. They have filed their show cause. When this Court enquired from the Sub Divisional Magistrate, he submitted that on 29.10.2004 the first information report was lodged by him but unfortunately no action was taken by the. concerned Police Officer of the concerned Police Station. 4. Mr. Prashant Kumar, Incharge, Police Station, Govindganj informs this Court that on 6.11.2004 the said Receiver has surrendered in the Court and since thereafter he is in jail. Mr. S.D. Yadav, learned Government Counsel informs the Court that the usufruct for three years has already been recovered and has been paid to the petitioner. 4. Mr. Prashant Kumar, Incharge, Police Station, Govindganj informs this Court that on 6.11.2004 the said Receiver has surrendered in the Court and since thereafter he is in jail. Mr. S.D. Yadav, learned Government Counsel informs the Court that the usufruct for three years has already been recovered and has been paid to the petitioner. Learned counsel for the petitioner submits that the property was taken in possession by the Receiver under the orders of the Sub-Divisional Magistrate somewhere in the year 1977 and since then the Receiver has not given any account nor he has paid the money to the petitioner nor has deposited the amount in the Sub-Divisional Magistrates Court. 5. When this Court enquired from Mr. Prashant Kumar that what action was taken by him after receiving the report dated 29.10.2004, he informed the Court that he tried to arrest the said Receiver who is a practising Advocate and he also went to the Chief Judicial Magistrate for obtaining an arrest warrant. This Court required him to inform the Court that in a cognizable case which is non-bailable and relates to misappropriation of the Government moneyl the amount which was to be deposited in the Court why the Receiver-curn-Advocate was not immediately arrested, despite repeated questions he is not ready to give any answer. I asked Mr. S.D. Yadav to seek instructions and inform the Court but unfortunately the said Police Officer stands dumb like a stone. From his conduct I must observe that he tried his best to protect the said Receiver-cum-Advocate and gave him the longest latitude so that before the Advocate is arrested he may obtain bail from some Court or the other. 6. In a case which is cognizable and is non-bailable the Police Officer under the law is obliged to arrest a person against whom the report is lodged, he could not show any clemency or leniency to the accused, whosoever and howsoever high he is. The question is not who :s he or what is he? The question is everybody is equal before the law and if the Police Officer like this tries to protect the wrongdoers against whom the Sub-Divisional Magistrate lodges a report then what appropriate action is required to be taken against this Officer. The Superintendent of Police present in the Court assures that he would take immediate action against this Police Officer. The question is everybody is equal before the law and if the Police Officer like this tries to protect the wrongdoers against whom the Sub-Divisional Magistrate lodges a report then what appropriate action is required to be taken against this Officer. The Superintendent of Police present in the Court assures that he would take immediate action against this Police Officer. Whenever the matter relating to the bail of said Advocate comes in the Court or before any Court the fact shall always be brought to the notice of the said Court that the said Advocate has been taken into custody under the directions of this Court as a report has been lodged against him because he has committed the offence of misappropriation. It shall be the duty of the Superintendent of Police to see that each Court hearing the bail application of said Receiver-cum-Advocate is Informed that because of the lapses committed by the said Advocate in his capacity as Receiver, a report was lodged and he has been taken into custody and the case was being monitored by this Court 7. Shrt Yadav, learned counsel for the State submits that within a period of two months the total amount would be recovered and would be paid to the petitioner. To the extent that the amount would be paid to the petitioner I accept the words of Mr. Yadav but so far as the question of recovery is concerned, it would be for the State to make. On the last date I have observed that for the lapses committed by the Courts or the Administrative Officers no person can be allowed to suffer. If the State and its Officers are unable to recover the said amount then too the petitioner would have to be paid compensation in accordance with law. It would be for them to recover or not to recover the money but in any event the petitioner would be paid the money which under the law he is entitled to. 8. Put up on 17th January, 2005. In the meanwhile the Superintendent of Police shall take action against the erring official and would also observe the true spirit of this order. The Superintendent of Police shall personally monitor the entire matter.