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Patna High Court · body

2007 DIGILAW 132 (PAT)

Maheshwari Prasad Yadav v. State Of Bihar

2007-01-17

SHEEMA ALI KHAN

body2007
Judgment 1. Heard Mr. Tara Kant Jha, Sr. Counsel appearing on behalf of the petitioner and Mr, K.Vishoka Nand, counsel appearing on behalf of the O.RNo.2. 2. Before taking facts of the complaint petition, it is relevant to state a few facts bringing on record regarding the background in which complaint petition no. 771C/2004 has been instituted. 3. That under Indira Awas Scheme in the village.of Chikni Fulkaha, the Opposite Party No.2, Budan Ram was allocated money to build his house. 4. First instalment of Rs. 7,000.00 had already been paid to the opposite party no.2 complainant, at the time when it is said that the alleged occurrence took place. 5. Budan Ram filed an application on 22.5.205 for the payment of second instalment to the Block Development Officer, it would be apparent from annexure-3. 6. This application was recommended to the Panchayat Secretary and the O.RNo.2 vide receipt annexed as Annexure-3/1, which was paid the second instalment of Rs. 7,000.00 on 16.9.203. 7. On 22.9.2004, the Dalpati went to examine work done in the progress of construction of the house of the complainant- Budan Ram and when he reached on 22.9.04 at 8.00 A.M. Smt. Sundari Ram wife of Shivan Ram was very offended and she is said to have told the Dalpati that she is Ward member and she will not make the construction. It is also alleged that Shivan Ram, Sundari Ram and Budan Ram (complainant) is said to have assaulted the Dalpati. The Dalpati made a complaint to the Mukhiya of Panchayat Chikni Fulkaha on 22.9.2004 on the date on which the said occurrence is said to have taken place. The Mukhiya forwarded the complaint petition made by the Dalpati, Satruhan Prasad Yadav, to the Block Development Officer with respect to the occurrence that had taken place on 22.9.04 at 8.00 A.M. in the morning. A letter was also issued on 22.9.04 which is annexure-4 series in the application before this court. 8. The Block Development Officer vide letter no. 192-02 forwarded the complaint petition filed by the Dalpati to the Officer-in-charge of Gamharia for proper action. As a result of the allegations of insulting and assaulting to the Dalpati a case was instituted numbered as Gamharia RS. Case No. 52/04. 9. 8. The Block Development Officer vide letter no. 192-02 forwarded the complaint petition filed by the Dalpati to the Officer-in-charge of Gamharia for proper action. As a result of the allegations of insulting and assaulting to the Dalpati a case was instituted numbered as Gamharia RS. Case No. 52/04. 9. It would also be relevant to state that the petitioner who is presently the Mukhiya of Chikni Fulkaha Gram Panchayat had made a complaint against Pankaj Yadav, Up-Mukhiya of the Gram Panchayat in which he had stated that Pankaj Yadav had been convicted under Sec.395 of the Indian Penal Code vide order dated 29.7.02 in Sessions Case No. 31/95 and, therefore, Pankaj Yadav was not qualified to hold the post of a member of the above Gram Panchayat and he could not continue as a Up-Mukhiya of the Panchayat within the meaning of Clause (G) of Sub Section (1 of Sec.139 of the Bihar Panchayat Raj Act, 1993. 10. The order of the State Election Commission is annexure-6 to the application. The State Election Commission disqualified Sri Pankaj Yadav and held that he would cease to hold the post of the Up-Mukhiya of Chikni Fulkaha Gram Panchayat.The complaint filed by the petitioner before the Bihar State Election Commission has created ill feeling between Pankaj Yadav and the present petitioner, Maheshwari Prasad Yadav which has resulted in filing of complaint petition no. 771C/4. 11. The complaint petition has been filed by the complainant-Budan Ram who is said to have assaulted the Dalpati on 22.9.04. This complaint was filed on 25.9.04 in which it has been alleged that the complainant is the Scheduled Caste person and he is being targeted by the petitioner who is the Mukhiya for political reason. 12. In sum and substance it has been alleged that the Mukhiya had withheld Rs. 4,0000.00 out of Rs. 14,000.00 which was paid to the complainant under the Indira Awas Scheme. It has further been alleged on 22.9.04 at about 6.0 P.M. the Mukhiya (petitioner has called the complainant to his house to allegedly pay him Rs. 4,000/-that was due to the complainant and when the complainant had gone to visit the Mukhiya he had abused him. 13. On the basis of these allegations, the complaint petition was lodged. 14. It has further been alleged on 22.9.04 at about 6.0 P.M. the Mukhiya (petitioner has called the complainant to his house to allegedly pay him Rs. 4,000/-that was due to the complainant and when the complainant had gone to visit the Mukhiya he had abused him. 13. On the basis of these allegations, the complaint petition was lodged. 14. The witnesses in the complaint petition is Pankaj Yadav, the Up-Mukhiya against whom the petitioner had filed a case before the State Election Commission, Bihar, Patna and some other persons. 15. The counsel for the petitioner has submitted that the complaint petition for an occurrence on 22.9.04 was instituted on 25.9.04 and it is not possible but also most improbable at 8.00 A.M. and again 8 P.M. on the same date i.e. 22.9.04 there should be two occurrences. Both involving the Dalpati of the village. The Mukhiya has taken steps immediate in informing the Block Development Officer which resulted in filing of First Information Report for the same date of occurrence at different times. 16. Learned counsel for the petitioner has drawn my attention to the evidence of Up-Mukhiya, P.W.1. In his evidence he has stated to the court that he is not aware that the complainant had gone to the house of Mukhiya to take the money which was allegedly due to him and in this way it is submitted that the case of the complainant is not supported by this witness. P.W.2 also does not support the case of the complainant inasmuch he has stated that he resides 1 K.M. away from the house of Mukhiya and he was not present at the said time of the occurrence. It is also stated by him that Budan Ram does not have any land and he is not aware with respect to whether Budan Ram has utilised the money for construction of his house. Two of the witnesses of the complaint petition are not supporting the factum of the occurrence, and as such, it can not be said that the case of the complainant is supported by the witnesses in order to warrant and order of cognizance. 17. It has also been submitted that the complaint petition is not only unbelievable but has been instituted because of political motives to implicate the petitioner. 18. 17. It has also been submitted that the complaint petition is not only unbelievable but has been instituted because of political motives to implicate the petitioner. 18. Referring to the complaint of the Dalpati and institution of the First Information Report on the recommendation of this petitioner. Learned counsel for the petitioner submitted that these facts indicate that the complainant has filed the case as a counter blast to the First Information Report lodged against him and therefore the case of the complainant is nothing but an attempt to misuse and abuse of process of law. 19. On going through the facts of this case, it is clear that the case has been lodged out of political motive at the instance of Up-Mukhiya. The date of occurrence is 22.9.04 is very relevant for the purposes of judging whether the allegations made in the complaint petition are true. On one hand, First Information Report has been lodged by the Dalpati against the complainant for an occurrence dated 22.9.04 which is said to have taken place at 8.00 A.M. in which the complainant has alleged that he was abused and assaulted by the complainant and on the other hand, the complainant changes the time of occurrence and lodged a case against the Mukhiya who had already recommended to the Block Development Officer for taking appropriate action against the complainant. It may be noted here that the payment of the Indira Awas Scheme made to the complainant is through the Block Development Officer. The role of the petitioner is only to recommend the persons fit for receiving the benefit of the said Scheme and, therefore, to allege that the money was withheld by the Mukhiya appears to be false on the very face of the allegations made. Not only the allegations unbelievable but the complaint case is not supported by the witnesses who have been named in the complaint petition and under the circumstances it is not possible to hold that the prima facie allegations made in the complaint petition are true and, therefore, it would be a misuse of process of law to allow the prosecution of the petitioner in the complaint case. 20. 20. Having regard to the facts of the case that the complaint has been lodged out of political vendata and also having regard to the facts that the complaint case is not supported by the witnesses and the allegations contained therein are improbable, I quash the order of cognizance dated 29.7.2006 passed in complaint case no. 771C of 2004 pending in the court of the Chief Judicial Magistrate, Madhepura. In the result, the application is allowed.