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2006 DIGILAW 909 (PAT)

Suresh Prasad v. State Of Bihar

2006-10-09

SADANAND MUKHERJEE

body2006
Judgment 1. Heard. 2. This is an application under Sec. 482 of the Cr.P.C. for quashing the order dated 18.8.2003 passed by Sri S.K. Singh, Judicial Magistrate, 1st Class, Patna and the proceeding which was running in the Court of Sri N.N. Singh, Judicial Magistrate, 1st Class, Patna, in Complaint Case No. 2341(C) Of 2001. 3. Notice was issued to thecomplain-ant who was added as O.P. No. 2 and the further proceeding in the aforesaid complaint case was stayed. 4. The present complaint case was filed by the complainant-Opposite Party No. 2, Mamta Kumari, an Assistant Teacher in the Government Middle School. 5. The gist of the complaint case in as follows: By the order dated 12.12.1997, the Deputy Development Commissioner, Patna, allotted an official quarter in favour of the complainant. Earlier, one Late Lakhrani Devi, was residing in the same quarter as a Headmistress. The complainant was residing there after the retirement of Lakhrani Devi with her sister Madhuri Kumari and Lakhrani Devi also kept visiting the premises. It is alleged in the complaint petition that Suresh Prasad, accused no. 3 (petitioner in this case), an Assistant Teacher got the quarter allotted in his favour by the order of the District Superintendent of Education. The allotment of the said quarter was made by the Deputy Development Commissioner in favour of the complainant. After the said allotment the complainant came in possession of the premises. After retirement, Lakhrani Devi, has some dues in her Department and for the payment of the same she filed a case bearing M.J.C. No. 193 of 1999 and in that petition it was stated that the complainant was residing in her residential quarter. It was also alleged that on the date of occurrence all the accused persons came to her house and the accused no. 1, Ashok Kumar, District Superintendent of Education, used foul language. Accused No. 3, Suresh Prasad (petitioner) armed with pistol threatened all and started executing the order. Accused No. 1, Ashok Kumar, the District Superintendent of Education, Patna and the accused no. 3, Suresh Prasad (petitioner) and the accused no. 2, pulled out the households articles of the complainant valued at Rs. 1,50,000.00 and loaded the same on a vehicle standing outside. Accused No. 1, Ashok Kumar, the District Superintendent of Education, Patna and the accused no. 3, Suresh Prasad (petitioner) and the accused no. 2, pulled out the households articles of the complainant valued at Rs. 1,50,000.00 and loaded the same on a vehicle standing outside. The matter was reported to Kotwali Police Station who refused to take any action and hence, accordingly, the complaint case was filed by the complainant before the Chief Judicial Magistrate, Patna. 6. It has been submitted on behalf of the petitioner that the cognizance was taken on the complaint case lodged under Sections 448/373/323/380 of the Indian Penal Code read with Sec.27 of the Arms Act and there was an order dated 18.8.2003 for framing of the charge. It is stated that it was admitted in the complaint petition that the quarter under possession of Lakhrani Devi was allotted to the petitioner vide order dated 2.6.1997 with an endorsement that on retirement of said Lakhrani Devi, the petitioner may take possession of the quarter. After retirement, the said Lakhrani Devi, did not vacate the quarter and the same was not handed over to the petitioner. The further case of the petitioner is that the matter was informed to the authorities and after verifying all the facts and circumstances, the District Superintendent of Education, Patna, requested the District Magistrate, Patna, to get the quarter in question vacated immediately (Annexure-5 to the application). An eviction case was also filed by the District Superintendent of Education bearing Eviction Case No. 30 of 1999 in the court of Sub-Divisional Magis-trate-cum-Competent Officer to get the quarter in question vacated and order was passed by the Sub-Divisional Magistrate to vacate the quarter in question within 15 days (Annexure 6 to the application). However, no action was taken and since said Lakhrani Devi, died, the matter remain pending. After an inquiry with regard to the unauthorised occupation of quarter by the complainant (Opposite Party No. 2), the allotment was cancelled (Annexure-8 to the application). The aforesaid order of cancellation was not challenged in any court of law. On 10.9.2001, the complainant was evicted from the premises by the Special Magistrate in compliance of the order passed under the Public Premises Act. Thereafter, the complainant-O.P. No. 2 forcibly re-entered the premises. Suspension order was issued against the aforesaid O.P. No. 2 (Annexure-9 to the application). The aforesaid order of cancellation was not challenged in any court of law. On 10.9.2001, the complainant was evicted from the premises by the Special Magistrate in compliance of the order passed under the Public Premises Act. Thereafter, the complainant-O.P. No. 2 forcibly re-entered the premises. Suspension order was issued against the aforesaid O.P. No. 2 (Annexure-9 to the application). Eviction order was passed after confirmation of allotment in favour of the petitioner. O.P. No. 2 was evicted from the premises on 21.12.2001. The possession of quarter was delivered to the petitioner in presence of the Deputy Secretary (Annexure-10 to the application). It has also been submitted that the allegation made in the complaint petition is false, fabricated and without any substance. Cognizance was taken against the petitioner under Sections 348/380 of the Indian Penal Code. It has also been submitted that in the facts and circumstances, the entire complaint is an abuse of the process of the court. With reference to order passed in Criminal Misc. No. 28200 of 2003, in a matter of quashing the proceeding in the same case, proceeding was quashed by a Bench of this Court presided over by Hon ble Mr. Justice Navin Sinha vide order dated 20th of May, 2004 as against petitioner in that case. The aforesaid order is Annexure-11 to the application. With reference to the aforesaid order, it has been submitted on behalf of the petitioner that the case of the petitioner stands.on similar footing. The complaint case was filed, suppressing the material facts and it is fit to be dismissed on this ground alone. There was an eviction case before the Sub-Divisional Magistrate, Patna bearing Eviction Case No. 30 of 1999 for initiating a proceeding under the Public Premises Act. The O.P. No. 2 filed Intervention petition opposing eviction also and contending that she was in valid occupation of the premises. On 6.9.1999 final orders, of eviction were passed. As referred to ahove, it has also been submitted that on 10.9.2001 illegal occupant Lakhrani Devi alongwith opposite party no. 2 was evicted from the premises by the Special Magistrate in compliance of the orders passed under the Public Premises Act. The opposite party , no. 2 forcibly re-entered the premises and hence there was deputation of Magistrate for eviction of opposite party no. 2 and accordingly opposite party no. 2 was evicted. 7. Although opposite party no. 2 was evicted from the premises by the Special Magistrate in compliance of the orders passed under the Public Premises Act. The opposite party , no. 2 forcibly re-entered the premises and hence there was deputation of Magistrate for eviction of opposite party no. 2 and accordingly opposite party no. 2 was evicted. 7. Although opposite party no. 2 had made appearance in this case, no submission has been put forward nor anyone was present on his behalf. 8. It is true that this Court cannot proceed on examining the annexures till before the stage of framing of charge such material are not brought before the court below but vide order dated 20th of May, 2004 passed in Criminal Misc. No. 28200 of 2003 in the same case, a Bench of this Court presided over by Hon ble Mr. Justice Navin Sinha observed that "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". It was further observed that "reference may be made to the Judgement reported in 2002(2) SCC 135 . This Court in exercise of powers under Sec. 482 Cr.P.C. would have the jurisdiction to shift 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". 9. It appears that even at the stage of charge aforesaid matters were not considered. 10. The proceeding of the present case was stayed vide order dated 12.4.2005 by a Bench of this Court. Although notice was served upon Opposite Party No. 2, Opposite Party No. 2, did not appear. In course of the proceeding, it appears that the case was fixed for charge. The aforesaid contentions should have been considered at the point of hearing on charge. Although notice was served upon Opposite Party No. 2, Opposite Party No. 2, did not appear. In course of the proceeding, it appears that the case was fixed for charge. The aforesaid contentions should have been considered at the point of hearing on charge. This not having been so done, this Court is constrained to set aside the impugned order and quash the prosecution as the same is abuse of the process of the court. 11. 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 in accordance with law. This application is, therefore, allowed.