Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 629 (JHR)

Himanshu Bhusan Paul v. State of Jharkhand

2008-06-24

D.K.SINHA

body2008
Order The petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashment of the entire criminal proceeding initiated against him including the order dated 28.6.1995, passed by Shri P. K. Sharma, Judicial Magistrate, Ranchi whereby and whereunder summons were directed to be issued against him and two others, the court having been found a prima facie case for the alleged offence under Sections 426/500/504 of the Indian Penal Code against them in Complaint Case No. 378 of 1994. 2. The brief fact of the case, as it stands narrated in the complaint case was that the complain any opposite party No. 2 Bimal Das Gupta was the Executive Director of Mis Ranchi Cement Industries Private Ltd. having its registered office at Birendra Niketan, Peace Road, Lalpur, Ranchi. The said industry was proposed to be set up at Ranchi in the year 1986 and therefore, one Sudhendu Kumar Dutta was made the Chairman of the said industry whereas P.C. Dey Sarkar, Farraque Ali, V.P. Shah a, Himanshu Bhusan Paul (Petitioner). Mrs. Iia Gon and Banshidhar Agarwal were made the Directors who were the shareholders in the proposed industry. On the retirement of Panchu Gon from his service from MECON, he replaced his wife Gon as Director in the Company. It was alleged in the complaint case that Mr. Panchu Gon and Banshidhar Agarwal in collusion to each other stopped the operation of account of the proposed industry in the State Bank of India and further stopped the financial assistance what the industry was receiving from the Bihar State Financial Corporation at the moment while the construction work of the factory was going on in full swing. A meeting of the Board of Directors was held and by its resolution Banshidhar Agarwal and Panchu Gon were removed from the Board of Directors. After their removal, it was alleged, that Panchu Gon started creating mischief in collusion with Banshidhar Agarwal who started sending letters defaming the Executive Director, Bimal Das Gupta (complainant/opposite party NO.2) and S.K. Dutta by using filthy language. After their removal, it was alleged, that Panchu Gon started creating mischief in collusion with Banshidhar Agarwal who started sending letters defaming the Executive Director, Bimal Das Gupta (complainant/opposite party NO.2) and S.K. Dutta by using filthy language. It was alleged that on the instigation of Panc.hu Gon, the petitioner Himanshu Bhusan Paul started defaming the Chairman and Executive Director and also started sending letters by using the filthy language to Sri S.K. Dutta and instigated his son Moy Paul to send letters to S.K. Dutta, some signed and unsigned in order to compel and blackmail the Chairman Sri S.K. Dutta and with the intention to grab the factory. It was alleged that the accused Moy Pal, son of the petitioner, had written letters on 1.6.1994, 28.8.1994 and 3.10.1994 with intention to damage the reputation of the complainant and the Chairman of the firm and to extort money from him. 3. Mr. R.S. Majumdar, the learned counsel, submitted that from the plain reading of the complaint, it would be evident that the petitioner was the shareholder In the proposed cement factory who had made financial contribution in the construction work, an old aged man, about 74 years, completely bedridden With serious mental disorder. As a matter of fact, the letters in question, according to the complaint, were sent by the co-accused Moy Pal who has been shown to be the son of the petitioner but the petitioner has got no concern whatsoever with the person and that Moy Pal is not the son of the petitioner. 4. Mr. Majumdar further submitted that without appreciating this aspect that the petitioner was not the author of the defamatory letters alleged to be sent to the complainant, the learned Magistrate erred by directing the summons to be issued against him which would amount to miscarriage of justice. 5. It would not be out of place to mention, Mr. Majumdar further submitted. that the complainant/opposite party No. 2 died long ago and with reference to paragraph 11 of the petition, under such situation, the Magistrate had no option but to acquit the accused persons in a summon's trial case under Section 256 of Cr.P.C. which was categorically observed by Delhi High Court in the case of Om Saran and Ors. vs. M/s Satya Dhavan and Am. reported in 1990 Cr.L.J. 1619 Delhi. 6. Heard Mr. A.B. Mahato, learned A.P.P. for the State. 7. vs. M/s Satya Dhavan and Am. reported in 1990 Cr.L.J. 1619 Delhi. 6. Heard Mr. A.B. Mahato, learned A.P.P. for the State. 7. Having regard to the facts and circumstances of the case it is relevant to mention that when the notice was sent to the complainant/opposite party No. 2 through ordinary process, the process server of Nazarat reported, "O.P. No. 2 died" on 23.12.1996. I find prima facie substance in the argument of the learned counsel with reference to Section 256 of Cr. P.C. which deals with non-appearance or death of complainant:- "If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: “Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case." 8. In the instant case admittedly none appeared on behalf of the complainants opposite party NO.2 to pursue the matter and equally none of his close relatives or successors opted to contest the case in view of the nature of allegation of 'defamation'. 9. I find from careful perusal of the documents on record that all the letters, defamatory in nature, were alleged to be written by the accused Moy Pal who has been shown to be son of the petitioner Fiimanshu Bhusan Paul but petitioner has disowned him as his son and clearly stated that Moy Pal was not his son. Even in case, Moy Pal was his son, the petitioner, Himanshu Bhusan Paul, could not have been saddled with the vicarious liability for the wrong committed by his son and therefore, criminal prosecution of the petitioner for the alleged offence cannot sustain. 10. Even in case, Moy Pal was his son, the petitioner, Himanshu Bhusan Paul, could not have been saddled with the vicarious liability for the wrong committed by his son and therefore, criminal prosecution of the petitioner for the alleged offence cannot sustain. 10. In the circumstances, the criminal prosecution initiated against him with respect to complaint Case No. 378 of 1994 corresponding to T.R. No. 593 of 2004 including the impugned order dated 28.6.1995 whereby the learned Judicial Magistrate, Ranchi found prima facie case against the petitioner for the alleged offence under Sections 426/500/504 of the Indian Penal Code is quashed. Accordingly, this petition is allowed.