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2010 DIGILAW 1108 (PAT)

Bhudeo Prasad Yadav v. State Of Bihar

2010-05-04

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar. J. 1. The sole petitioner, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 12.4.1999 passed by learned Chief Judicial Magistrate, Khagaria in Complaint Case No.51c of 1999. By the said order, the learned Magistrate has taken cognizance for the offences under sections 120b, 161, 409, 420 and 468 of the Indian Penal Code. 2. The short fact of the case is that the opposite party no.2 filed a complaint case vide Complaint Case No.51c of 1999 disclosing therein that in a general meeting he was selected as Agent/abhikarta for constructing Rang Manch under Jawahar Rojgar Yogna in Lagar Gram Panhayat under Parbatta Block. It was alleged that when he was selected in the general meeting as an agent, the accused persons started demanding illegal gratification and since no illegal gratification was given to the accused persons, the accused persons illegally and unautorizedly appointed one Ganauri Das in his place and thereafter first instalment of Rs.7,000/-was given to Ganauri Das. The total amount of construction of Rang Manch was Rs.85,000/-. It was alleged that the advance money of Rs.7,000/- was misappropriated by the accused persons in connivance with each other. On the said allegation the complaint petition was filed and the complainant was examined on solemn affirmation. The complainant also produced two witnesses during enquiry in support of his complaint and thereafter by the impugned order i. e.12.4.1999 the learned Magistrate took cognizance for the offences under sections 120b, 161, 409, 420 and 468 of the Indian Penal Code. 3. Mr. Pramod Mishra, learned counsel appearing on behalf of the petitioner submits that neither the complaint petition discloses any offence nor the criminal proceeding pursuant to the complaint petition is liable to proceed further since the petition was filed maliciously. He further submits that because of the fact that the complainant was a practicing advocate at Khagaria, after being not given contract work, the complainant filed the present petition maliciously. Learned counsel for the petitioner has argued that order of cognizance is also an example of non application of mind by the learned Magistrate. He further submits that because of the fact that the complainant was a practicing advocate at Khagaria, after being not given contract work, the complainant filed the present petition maliciously. Learned counsel for the petitioner has argued that order of cognizance is also an example of non application of mind by the learned Magistrate. He submits that the order has been passed mechanically which is evident from the fact that the learned Magistrate completely failed to notice that Sec.161 of the Indian Penal Code was long back repealed after Prevention of Corruption Act, 1988 was enacted. He submits that on this ground alone, the order of cognizance can be quashed. 4. Mrs. Indu Bala Pandey, learned A. P. P. appearing on behalf of the State, has opposed the prayer of the petitioner. However, she also submits that Sec.161 of the Indian Penal Code was already repealed. 5. After hearing learned counsel for the parties and examining the materials available on the record, I am of the view that the complaint does not make out a case. It is evident form the impugned order that though the complainant was selected for being appointed as an agent for the purpose of construction of building in question, the said decision was turned down by the Executive Committee and thereafter, Ganauri Das was appointed as Agent/abhikarta in place of opposite party no.2. Moreover, the complainant himself has admitted that he had filed Misc. case for the same reason before the District Magistrate, which too, stood rejected. 6. Besides, there is no material in the complaint petition, I am of the view that while taking cognizance, the learned Magistrate has not applied his judicial mind and in mechanical manner, the order was passed. I am of the view that on the basis of allegation made in the complaint petition allowing further proceeding in the court below will amount to allowing abuse of the process of the court and with a view to prevent the abuse of the process of the court as well as for the ends of justice, it is necessary to interfere into the matter, even at initial stage of the case. 7. Accordingly, order dated 12.4.1999 passed by the learned Chief Judicial Magistrate in Complaint Case No.51c of 1999 is hereby set aside and the petition stands allowed.