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2004 DIGILAW 567 (PAT)

Ashok Kumar v. State Of Bihar

2004-05-20

NAVIN SINHA

body2004
Judgment Navin Sinha, J. 1. The petitioner has preferred this application under Section 482 of the Code of Criminal Procedure against the order dated 18.8.2003 passed by the Judicial Magistrate, Patna, in Complaint Case No. 2341 (C) of 2001. By the said order the application of the petitioner preferred under Section 245 Cr. PC. for discharge had been rejected. The petitioner also seeks quashing of the entire prosecution as an abuse of the process of the Court. 2. A complaint case bearing no. 2341 (C) of 2001 was filed on 22.12.2001 by opposite party no. 2 in the Court of the Chief Judicial Magistrate. The present petitioner was arrayed as accused no. 1 in the said application. The complaint lodged under Sections 448, 373, 323 and 380 of the Penal Code read with Section 27 of the Arms Act stated that the complainant was an Assistant Teacher in the Government Vani Mandir Middle School, Rajbanshi-nagar, Patna. By order of the Deputy Development Commissioner, Patna, dated 12.12.1997 the complainant was allotted an official quarter as mentioned therein. Earlier, one Late Lakhrani Devi, Headmistress, was residing in the same. The complainant was residing there after the retirement of the deceased with the sister of the deceased and Lakhrani Devi also kept visiting the premises. 3. After the retirement of the deceased Lakhrani Devi, one Suresh Prasad (accused no.3) Assistant Teacher had the quarter allotted to himself by order of the District Superintendent of Education. The said Officer was not entitled to make allotment. The allotment was made by the Deputy Development Commissioner in favour of the petitioner after cancellation of the said illegal allotment and the petitioner came in possession of the premises. In a writ petition filed by the deceased Lakhrani Devi for certain claims, the possession of the petitioner had also come in for reference. It was alleged that on the date of occurrence all the accused came to her residence and the accused no. 1 (petitioner) used foul language stating that the complainant be pulled out by her hair and her belongings be thrown out. Accused no, 3 armed with a pistol threatened all and started executing the order. The accused no. 1, accused no. 3 and accused no. 2 pulled out the Freeze, Colour Television, VCR, two Almirah and other house hold goods as mentioned in the complaint valued at a total of Rs. Accused no, 3 armed with a pistol threatened all and started executing the order. The accused no. 1, accused no. 3 and accused no. 2 pulled out the Freeze, Colour Television, VCR, two Almirah and other house hold goods as mentioned in the complaint valued at a total of Rs. 1,50,000/- and loaded the same on the vehicle standing outside. The complainant pleaded that her belongings be not touched but the accused went away with her belongings. 4. The present petitioner, in the facts and circumstances of the case to be mentioned hereinafter, preferred an application for discharge under Section 245 Cr.P.C. The said application was rejected by an order dated 18.8.2003 leading to the present application under Section 482 Cr.P.C. 5. The learned Counsel for the petitioner and the opposite party no. 2 have been heard at length. 6. Learned Counsel for the petitioner contended that the present prosecution was an abuse of the process of the Court. He submitted that the complaint case was filed suppressing material facts and was therefore fit to be dismissed on this ground alone. Continuing his submissions he stated that the quarter in question was allotted to the deceased Lakhrani Devi. In view of her retirement in July 1997 the said quarter was allotted on 2.6.1997 to accused no. 3 Suresh Prasad. On 12.12.1997, the Opposite party no. 2 obtained an allotment in her favour without cancellation of the earlier allotment in favour of Suresh Prasad in anticipation of approval from the District Establishment Committee. The opposite party no. 2 even before the allotment in her favour dated 12.12.1997 appears to have entered into the flat while the same was in valid occupation of Lakhrani Devi who was to retire in July 1997. After her retirement Lakhrani Devi did not vacate the quarter and continued in occupation along with opposite party no. 2. This led to filing of Eviction Case No. 30 of 1999 before the Sub Divisional Magistrate, Patna, initiating proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act. The opposite party no. 2 filed an intervention application therein opposing the eviction also and contending that she was in valid occupation "of the premises. On 6.9.1999 final orders of eviction were passed in the Public Premises proceeding as contained in Annexure 3 to this application. The opposite party no. 2 filed an intervention application therein opposing the eviction also and contending that she was in valid occupation "of the premises. On 6.9.1999 final orders of eviction were passed in the Public Premises proceeding as contained in Annexure 3 to this application. It appears that an enquiry was also made into the occupation of the quarter by the opposite party no. 2 and the allotment made in her favour. Suffice it to say that the allotment in her favour made on 12.12.1997 was cancelled by an order dated 9.6.2001. This order of cancellation is on record as Annexure 12 to the supplementary affidavit filed by the petitioner. This order also records that a copy of the cancellation order was also communicated to opposite party no. 2. It is submitted by the counsel for the petitioner that this cancellation order was not challenged by the opposite party no. 2 in any proceeding before a competent court of law. The counsel for the opposite party no. 2, on questioned by the court, simply stated that he was blissfully unaware of the cancellation order passed against him on 9.6.2001 and denied that a copy of the same had been communicated to him. 7. It was further submitted on behalf of the petitioners that on 10.9.2001 the illegal occupant Lakhrani Devi along with opposite party no. 2 was evicted from the premises by the Special Magistrate in compliance of the orders passed under the Public Premises Act. It was thereafter that the opposite party no. 2 forcibly re-entered the premises. The present petitioner again wrote to the Sub Divisional Magistrate for eviction of the opposite party no. 2 who had illegally occupied the public premises. An Additional District Magistrate was appointed for evicting the opposite party no. 2. The Opposite party no. 2 was also suspended on 20.12.2001 for this act of indiscipline. Pursuant to the deputation of a Magistrate for eviction the opposite party no. 2 was evicted on 21.12.2001 and possession was delivered to Suresh Prasad (accused no. 3). It was only thereafter on 22.12.2001 that the present complaint was filed. On 10.9.2002 cognizance was taken under Section 448 and 380 read with Section 34 of the Indian Penal Code. On 24.6.2003 the application for discharge was filed which was rejected by the impugned order dated 18.8.2003. Thereafter the present application was filed on 29.9.2003. 8. 3). It was only thereafter on 22.12.2001 that the present complaint was filed. On 10.9.2002 cognizance was taken under Section 448 and 380 read with Section 34 of the Indian Penal Code. On 24.6.2003 the application for discharge was filed which was rejected by the impugned order dated 18.8.2003. Thereafter the present application was filed on 29.9.2003. 8. Based on the aforesaid submission counsel for the petitioner submitted that the entire complaint was an abuse of the process of court. The complaint was based on active and fraudulent concealment of the proceedings under the Public Premises Act and the eviction of the petitioner in proceedings under the same. It was further contended that the allegations in the complaint itself, in respect of allotment of official residential quarters, appeared absurd and improbable. He further submitted that on the face of the complaint it could not be said that prima facie case under Section 448 or 380 IPC could be said to have been made out. This was on the basis that the averments in the complaint was delightfully vague in this context. 9. The learned Counsel for the petitioner lastly contended that in any event the petitioner was acting in discharge of official duties and had acted in good faith in pursuance of the orders passed in the proceedings under the Public Premises Act with regard to forcible occupation of public premises. The petitioner was thus protected under Section 16 of the Public Premises Act as also Section 197 Cr. P.C. 10. Learned counsel for opposite party no. 2 submitted that the present application for discharge had been preferred belatedly after all the witnesses of the prosecution had been examined before charge. Only the witnesses of the accused remained to be examined to be followed by conclusion of the trial after hearing arguments. The contentions of the petitioners as made in the present proceedings were basically issues of defence which can be decided only in a duly constituted trial. The learned Counsel further submitted that the documents annexed as annexures to this application under Section 482 Cr.P.C. would not be seen at this stage. Learned counsel relied upon a decision of the Supreme Court reported in 2004 SCC (Cr.) 353. The learned Counsel further submitted that the documents annexed as annexures to this application under Section 482 Cr.P.C. would not be seen at this stage. Learned counsel relied upon a decision of the Supreme Court reported in 2004 SCC (Cr.) 353. Reliance was also placed on 2002(4) PLJR 74 (SC) that the issue of applicability of Section 197 had to be left open till last stages of the trial and would not be sufficient justification for interference at this initial stage. Learned Counsel while admitting the cancellation order of allotment in favour of his client submitted that in absence of communication the same was of no consequence. 11. This Court after considering the submissions of the parties comes to the conclusion that the present application is not belated and cannot be thrown out at this stage. The applicability of Section 245 Cr.P.C. arises only after collection of evidence. Further more there has been no delay in approaching the court by the petitioner. True, that this Court cannot enter into examination of annexures enclosed to the application under Section 482 Cr. P.C. That is not exactly the situation in the present case. Admittedly, the complainant came into occupation of the government quarter long before the allotment in her favour on 12.12.1997 and before the retirement of Lakhrani Devi in July 1997. The petitioner also did intervene in the eviction proceedings against Lakhrani Devi under the Public Premises Act and claimed lawful possession. This was of no consequence and the petitioner came to be evicted in valid proceedings under the Public Premises Act along with Lakhrani Devi. This eviction on 10.9.2001 was not challenged and was allowed to attain finality in so far as opposite party no. 2 is concerned. Quite obviously the opposite party no. 2 was aware of the order dated 9.6.2001 by which her allotment stood cancelled. The act of forcibly re-entry by her was obviously illegal. This Court would not countenance this illegality merely on the plea of the opposite party that these are matters of defence and trial. The premises were vacated in pursuance of a valid proceedings under the Public Premises Act. The opposite party no. 2 does not contend that she was not aware of the eviction proceedings or that she was not heard. 12. The premises were vacated in pursuance of a valid proceedings under the Public Premises Act. The opposite party no. 2 does not contend that she was not aware of the eviction proceedings or that she was not heard. 12. In the aforesaid facts and circumstances, it is further apparent that the petitioner acted in discharge of his duty in compliance of the order passed in the proceedings under the Public Premises Act. Section 16 of this Act provides that no suit prosecution or other legal procedings shall lie in respect of any thing done in good faith or in pursuance of orders passed under the said Act. Undoubtedly the actions of the present petitioner were in discharge of official duty. Simply because vague allegations have been levelled by active concealment of necessary facts by the complainant would not be a sufficient justification for this court to decline interference under Section 482 Cr.P.C. on the plea that interference at the initial stage would be the exception and not the rule. Rererence may be made to the judgement reported in 2002(2) SCC 135 . This Court in exercise of powers under Section 482 Cr.P.C. would have the jurisdiction to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. If this Court were to come to the conclusion that the allegations give rise to some suspicion but not grave suspicion against the accused, it would be justified in interference. This Court can consider the broad probabilities of the Act, the total effect of the evidence and the documents produced before the court below. These factors should have essentially been considered while hearing the discharge application. This not having been so done, this court would have no option but to set aside the impugned order. 13. In so far as the applicability of Section 197 Cr.P.C. is concerned, this Court is satisfied in the facts and circumstances of the present case that said provision was drafted essentially to protect persons like the petitioner in discharge of official duties. No sanction having been obtained the order of cognizance is therefore bad on this ground alone. 14. 13. In so far as the applicability of Section 197 Cr.P.C. is concerned, this Court is satisfied in the facts and circumstances of the present case that said provision was drafted essentially to protect persons like the petitioner in discharge of official duties. No sanction having been obtained the order of cognizance is therefore bad on this ground alone. 14. In conclusion, this court both on the basis of the facts on record and the propositions of law comes to the conclusion that the prosecution of the present petitioner is an abuse of the process of law. Continuance of the same shall only result in harassment for what were essentially done by him in accordance with law. This application is therefore allowed.