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2005 DIGILAW 383 (JHR)

S. S. Hussain @ Sheen Akhtar v. State Of Bihar

2005-05-17

HARI SHANKAR PRASAD

body2005
JUDGMENT Hari Shankar Prasad, J. 1. This application under Section 482, Cr PC has been filed for quashing the entire criminal proceedings including order dated 19.7.1999 passed in Complaint Case No. 169/1999, whereby and whereunder the learned Judicial Magistrate, 1st Class, Ranchi took cognizance against the petitioner under Sections 153-A, 504 and 506, IPC. 2. Facts leading to the filing of the application are that the complainant- opposite party No. 2 lodged a complaint alleging, inter alia, therein that he was the Principal of Ranchi College, Ranchi and he was transferred from Ranchi College to J.N. College, Dhurwa, Ranchi by the petitioner, who, at the relevant point of time, was acting as Vice Chancellor. It is alleged that the said transfer has been done in an illegal manner. Further allegations are that at the instance of petitioner, a letter was issued by the Registrar of Ranchi University asking the complainant-opposite party No. 2 to show his 10th class certificate to establish his date of birth and that letter was also issued at the instance of the petitioner. It is also alleged that a news item was published in the news paper "Prabhat Khabar" at the instance of the petitioner in relation to the aforesaid date of birth of the complainant just to harass and down grade the prestige of the complainant-opposite party No. 2. The case was transferred to the Court of Sri R.S. Sinha, Judicial Magistrate, 1st Class, Ranchi, where three witnesses were examined under Section 202, Cr PC and cognizance under Sections 153-A, 504 and 506, IPC was taken. 3. Notice was issued to the complainant opposite party No. 2 and the same was received and even opposite party No. 2 appeared through learned counsel Sri P.C. Tripathy on the first day of hearing but on subsequent date he did not appear. 4. Learned counsel appearing for the petitioner submitted that as per complaint petition, the petitioner was acting as Vice Chancellor of the university and from admission of the complainant opposite party No. 2, it appears that the he was transferred from the post of Principal, Ranchi College to the post of Principal, J.N. College, Dhurwa, Ranchi and complainant-opposite party No. 2 has failed to point out whether his transfer was within the competence of the petitioner or not and the petitioner had issued his transfer order without any authority. 5. 5. Learned counsel for the petitioner further submitted that transfer order has been issued in usual course and that office order has been issued by the competent authority in due discharge of his duties and there was no illegality or irregularity in the transfer order and in fact complainant-opposite party No. 2 was transferred on the ground of several complaints received against the complainant-opposite party No. 2 from the various groups of students and allegation was regarding not for diversion of fund only but also collecting of Rs. 250/- from each student in the name of Silver Jubilee Celebration of the college. The aforesaid fact was brought to the notice of the Chancellor and also published in the news paper. It is further stated that in view of the aforesaid fact the Chancellor postponed the Silver Jubilee Celebration and asked the petitioner, who was acting as Vice Chancellor, to enquire into the matter, and a High Level Committee was constituted by the petitioner to enquire into the alleged allegations of the students against the complainant-opposite party No. 2 in connection with Silver Jubilee Celebration and in that view of the matter, the action was taken against the complainant-opposite party No. 2 as per provisions laid down under Bihar State University Act, 1976 and the action taken was intimated immediately to the Chancellor. On seeking further information by the Chancellor, a second enquiry, in relation to alleged financial irregularities, was constituted for the period during which complainant-opposite party No. 2 was the Principal of Ranchi College and in order to see that the enquiry of the aforesaid committee was genuine and not to interfere with, a notification was issued transferring the complainant-opposite party No. 2 from Ranchi College to Dhurwa College purely on administrative ground, as per provision contained in Section 34(ii) of Part II of the Bihar State University Act, 1976, which says that transfer can be made on administrative ground. 6. It is denied that for the purpose of defaming the complainant-opposite party No. 2, notice was published to submit his class 10th certificate for verification of his date of birth and it has not been done at the instance of the petitioner. 6. It is denied that for the purpose of defaming the complainant-opposite party No. 2, notice was published to submit his class 10th certificate for verification of his date of birth and it has not been done at the instance of the petitioner. The mater is that during process of preparation of the list of teachers, who had to retire, the office of the Registrar, Ranchi University, observed that there was certain discrepancy in the records of the date of birth of the complainant in the office registrars (Annexure 7). Since petitioner was to retire soon, in order to avoid any confusion in the date of birth and the date of retirement of the complainant, the complainant-opposite party No. 2 was asked to produce his matriculation certificate by the Registrar of the University, which has been annexed as Annexure 2 of the complaint petition. It is also pointed out that under Article 414 of the Bihar State University Act, 1976, it is always open that employer has got every right to ask for any document for his satisfaction. It was further pointed out that even if some news item was published in the newspaper but it is not denied that the news is incorrect. 7. On the other hand, learned APP for the State submitted that since cognizance has been taken after full fledged inquiry under Section 202, Cr PC and after examination of witnesses and, at this stage, only prima facie case is required to be seen. He further submits that from the allegation, a prima facie case is made out and cognizance order does not require any interference and this quashing application is fit to be dismissed. 8. Admitted case of the complainant-opposite party No. 2 is that he was transferred from Ranchi College to J.N. College, Dhurwa as Principal and further, a news item was published in the local newspaper "Prabhat Khabar" asking him to submit 10th Class certificate to establish his date of birth. 8. Admitted case of the complainant-opposite party No. 2 is that he was transferred from Ranchi College to J.N. College, Dhurwa as Principal and further, a news item was published in the local newspaper "Prabhat Khabar" asking him to submit 10th Class certificate to establish his date of birth. In course of submission, learned counsel appearing for the petitioner pointed out that several provisions of Bihar University Act empowers the Vice-Chancellor to transfer an employee working under the University on administrative grounds and in that capacity the petitioner, who was the then Acting Vice-Chancellor of Ranchi University, transferred the opposite party No. 2-complainant and transfer is not considered to be punishment and if news item appeared in the newspaper regarding submission of certificate of 10th class, this is not the cause of humiliation or defamation to the complainant-opposite party No. 2, but it is alleged that behind the publication of the news item in the newspaper, he (petitioner) is involved. Under these circumstances, it will be difficult for the authority to work if for such actions, authority concerned like petitioner faces criminal prosecution, then the whole institution will become non- functional and for a petty matter, authorities will have to run to the Courts to face criminal prosecution. The opposite party No. 2-complainant has not made out any case for action to be taken against the petitioner. On the other hand, there are allegations against opposite party No. 2-complainant but that has not to be seen at this stage. But the complainant-opposite party No. 2 has filed this case against the petitioner definitely with a view to harass him and to take revenge for the action taken against him. In this connection, reliance may be placed upon the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., reported in AIR 1992 SC 604 , wherein several grounds have been given, under which any case, which is covered under any of the circumstances referred to in the case (supra), will be quashed. The grounds of the aforesaid case are quoted herein- below : (1) Where the allegation 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 or made out a case against the accused. The grounds of the aforesaid case are quoted herein- below : (1) Where the allegation 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 or made out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do hot 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 uncotroverted allegation 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-congnizable 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 made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent 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 in any of the provisions of the Code of 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 grievances 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. Taking into consideration the facts and circumstances of the case and on the pleadings made above, this quashing application is allowed and the cognizance order dated 19.7.1999 passed in Complaint Case No. 169 of 1999, is hereby quashed.