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2010 DIGILAW 2289 (PAT)

Vinod Kumar v. State Of Bihar

2010-10-04

RAKESH KUMAR

body2010
JUDGEMENT 1. Heard Shri Raju Giri, learned counsel appearing on behalf of the petitioner and Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State. 2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 3.1.2006 passed by the Chief Judicial Magistrate, Buxar in G.R. No. 523 of 2003/Tr. No. 1572 of 2006 arising out of Buxar (Industrial Area) P.S. Case No. 27 of 2003. By the said order, learned Magistrate has taken cognizance of offence under Sections 448, 341, 379, 380, 465, 468, 504/34 of the Indian Penal Code. 3. Short fact of the case is that opposite party No. 2, Most. Sahnaz Bugum submitted a written report before the Officer- in-Charge, Industrial Area Police Station, Buxar disclosing therein that a plot in the Industrial Area, Buxar was leased out by the Industrial Area Development Authority to her husband. The plot in question was leased out to the husband of the informant for 99 years. Over the said plot, an industrial unit was established by her husband in the name and style of Liberty Dresses. It was disclosed that the husband died in the month of July,2000 and after the death of her husband, she was looking after the factory in question. It was alleged that at the time of occurrence ie. on 22.4.2003 in the evening at 6.00 P.M., this petitioner, who was at the relevant time, Branch Manager of the Bihar State Financial Corporation alongwith other two accused person, forcibly entered into the business premises. It was alleged that the accused persons assaulted the informant. They threw the articles of the factory in question. It was further alleged that the accused persons had assaulted not only the informant, but her two sons also. It was disclosed that the accused persons were in drunken condition and in the said occurrence, they had also looted some articles from the informant. On the basis of aforesaid written report, an F.I.R. vide Buxar (Industrial Area) P.S. Case No. 27 of 2003 was registered on 23.4.2003. After registering F.I.R., police thoroughly investigated the case and thereafter, chargesheet was submitted. After submission of charge-sheet, by the impugned order, the learned Magistrate has taken cognizance of the offence as indicated above. 4. On the basis of aforesaid written report, an F.I.R. vide Buxar (Industrial Area) P.S. Case No. 27 of 2003 was registered on 23.4.2003. After registering F.I.R., police thoroughly investigated the case and thereafter, chargesheet was submitted. After submission of charge-sheet, by the impugned order, the learned Magistrate has taken cognizance of the offence as indicated above. 4. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 18.11.2008, this Court passed an interim order of stay of proceeding pending in the Court below. 5. By order dated 27.10.2009, case diary of Buxar (Industrial Area) P.S. Case No. 27 of 2003 was called for from the Court of Judicial Magistrate, Buxar and same has been received, which is lying on record of this case. 6. Shri Raju Giri, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance, in sum and substance, has argued that the present case has been initiated against the petitioner maliciously and on the ground of malicious prosecution itself, the entire proceeding including order of cognizance is liable to be set aside. Learned counsel for the petitioner, while pressing the present petition, has referred to number of documents, which have been annexed with the present petition. Learned counsel for the petitioner, while referring to annexure-5 to the petition, submits that even in the year 2002 itself, the unit in question was already auction sold and it was settled with one Birendra Prasad Gupta, who has also been made accused in the present case. Learned counsel for the petitioner has further referred to annexure-6 to the petition, which is a typed copy of take over hand over of the mortgage assets. Learned counsel for the petitioner, while referring to annexure-6 to the petition, submits that the unit in question was already handed over to the highest bidder, namely, Birendra Prasad Gupta. Learned counsel for the petitioner has also referred to annexure-7 to the petition, which is a typed copy of a letter issued under the signature of Birendra Prasad Gupta. On the strength of anhexure-7, it has been argued that even the subsequent settlee, namely, Birendra Prasad Gupta had made a complaint before the petitioner, who was at the relevant time, Branch Manager, Bihar State Financial Corporation that the accused persons i.e. the son of the informant were trying to take possession of the unit in question. On the strength of anhexure-7, it has been argued that even the subsequent settlee, namely, Birendra Prasad Gupta had made a complaint before the petitioner, who was at the relevant time, Branch Manager, Bihar State Financial Corporation that the accused persons i.e. the son of the informant were trying to take possession of the unit in question. It was requested by Birendra Prasad Gupta for handing over possession of the factory in question to him. Learned counsel for the petitioner has further referred to annexure-8 to the supplementary affidavit dated 29.9.2010 filed on behalf of the petitioner i.e. a copy of order passed by this Court in C.W.J.C. No. 5498 of 2003. On 6.9.2004, a Bench of this Court had rejected the prayer of the informant of the present case for quashing of the auction sale, which was settled in favour of opposite party No. 3 of the writ petition. It was submitted that at the same time, the informant had filed the present criminal case against the petitioner and she had already approached this Court for taking over the possession of the unit in question. On the aforesaid ground, it has been submitted that apparently, it appears to be a malicious prosecution. Learned counsel for the petitioner, in support of his argument, has referred to a judgment of Honble Supreme Court reported in 2007(12) SCC 1 (Inder Mohan Goswami & Anr. V/s. Uttaranchal & Anr.). Learned counsel has specifically referred to paragraphs 23, 25 and 32 of the judgment of Inder Mohan Goswamis case (Supra). In sum and substance, it has been submitted that Hbnble Supreme Court in Inder Mohan Goswamis case (Supra) has again reiterated the law laid down by the Supreme Court in a case reported in AIR 1992 SC 604 (State of Haryana V/s. Choudhary Bhajan Lal). It has been submitted that in the said case, it has already been held that if the Court is satisfied that the prosecution has apparently been initiated maliciously then in that event, for the purposes of preventing the abuse of process of the Court, this Court under Section 482 of the Code of Criminal Procedure is well competent to interfere with such proceeding. Learned counsel for the petitioner has also referred to a judgment of Honble Supreme Court reported in 2007(14)SCC 776 (All kargo Movers (India) Private Limited & Ors. V/s. Dhanesh Badarmal Jain & Anr.). Learned counsel for the petitioner has also referred to a judgment of Honble Supreme Court reported in 2007(14)SCC 776 (All kargo Movers (India) Private Limited & Ors. V/s. Dhanesh Badarmal Jain & Anr.). He has referred to paragraph-16 of the judgment. It has been submitted that in special facts and circumstances of the case, this Court even, while hearing a petition under Section 482 of the Code of Criminal Procedure, can examine and look into the admitted documents. On the aforesaid ground, it has been prayed to set aside the order of cognizance and the entire proceeding. 7. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State, has vehemently opposed the prayer of the petitioner. It has been submitted by Smt. Pandey that the F.I.R. itself categorically discloses commission of offences. It was further submitted that after registering F.I.R., police thoroughly investigated the case and thereafter, submitted charge-sheet against this petitioner and other two accused persons even against Birendra Prasad Gupta. It has been submitted that once after investigation, police had already submitted charge-sheet, then the learned Magistrate, while taking cognizance of the offence, has committed no error. Learned Additional Public Prosecutor has also referred to some of the paragraphs of the case diary, in support of her contention that witnesses, during investigation, have corroborated the allegation made in the F.I.R Of course, at the time of hearing a petition under Section 482 of the Code of Criminal procedure, it is not at all required for this Court to peruse or examine the case diary, but since in the present case by a judicial order, case diary was called for, this Court allowed the learned Additional Public Prosecutor to place the same. 8. In view of the facts and circumstances particularly materials collected during the investigation, the Court is of the opinion that while taking cognizance of the offence, the learned Magistrate has committed no error. So far as the argument advanced by learned counsel for the petitioner that it was a malicious prosecution, this Court is of the opinion that it is very easy to make an allegation of malice but at the same time, it would be difficult to prove the same. Moreover, such malice cannot be examined by this Court at this initial or interlocutory stage. Moreover, such malice cannot be examined by this Court at this initial or interlocutory stage. Time without number, it has been reiterated by the Apex Court that at the initial or interlocutory stage, the Court should refrain from interfering with a criminal proceeding. Even in Bhajan Lals case (Supra), in paragraph-109, the Honble Supreme Court had held that power under Section 482 of the Code of Criminal Procedure is to be exercised in exceptional or rarest of rare cases. 1 do not find that petitioner has made out a case in the category of exceptional or rarest of rare case warring exercise of inherent power in his favour. In this case, fact remains that F.I.R. was registered in the year 2003 and matter has remained pending before this Court for considerable long time. 9. Keeping in view the fact that there is no defect in the order of cognizance, the petition stands rejected. 10. In view of rejection of this petition, interim order of stay stands automatically vacated. The pleas, which have been taken by learned counsel for the petitioner before this Court, can well be raised at appropriate stage. This is not the stage to examine all those things. 11. Accordingly, the petition stands rejected.