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2010 DIGILAW 582 (PAT)

Jagdish Tiwari v. Tate Of Bihar

2010-04-02

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar and J JJ. 1. The sole petitioner, while invoking inherent jurisdiction of this Honble Court under Sec.482 of the Code of Criminal Procedure, has virtually prayed for quashing of the F. I. R. i. e. Mohania P. S. Case No.53 of 1998. 2. Sri K. N. Choubey, learned Senior counsel appearing on behalf of the petitioner submits that on same allegation, two F. I. Rs were lodged as per the information given by one Ram Bilas Paswan, Block Development Officer, Mohania, District-Kaimur i. e. Mohania P. S. Case No.53 of 1998 and Mohania P. S. Case No.54 of 1998. Learned Senior Counsel further submits that almost on similar allegation a case vide Mohania P. S. Case No.54 of 1998 was registered. In the second case, i. e. Mohania P. S. Case No.54 of 1998, the police after investigation submitted chargesheet under Sec.409 of the Indian Penal Code against co-accused, namely, Dharmu Ram, who was Panchayat Sewak at the relevant time showing him as an absconder. So far the petitioners case is concerned, the police had not find sufficient evidence for forwarding him to face trial. The final report was submitted by the police on 31.5.1999. Subsequently, by order dated 30.6.1999, the learned Chief Judicial Magistrate took cognizance of offence under Sec.409 of the Indian Penal Code against accused Dharmu Ram. Learned Sr. Counsel submits that in view of taking cognizance against accused Dharmu Ram by necessary implication, it is evident that the learned Chief Judicial Magistrate accepted the final form submitted by the police in respect of this petitioner. Of course, the order does speak the same in the clear term. 3. Learned Senior counsel for the petitioner has referred to column-4 of Annexure-1, i. e. F. I. R. of Mohania P. S. Case No.53 of 1998. In Column-4, the name of the informant,i. e. Ram Bilas Paswan was mentioned. The learned counsel has also referred to Column-4 of annexure-2, i. e. F. I. R. of Mohania P. S. Case No.54 of 1998. In column-4 of the two F. I. Rs. , name of Ram Bilas Paswan appears as the informant. Learned counsel for the petitioner tried to impress upon the Court that since in both cases informants are same, it can be assume that for the same allegation two F. I. Rs were lodged. In column-4 of the two F. I. Rs. , name of Ram Bilas Paswan appears as the informant. Learned counsel for the petitioner tried to impress upon the Court that since in both cases informants are same, it can be assume that for the same allegation two F. I. Rs were lodged. Learned counsel further submits that since in one case i. e. Mohania P. S. Case No.54 of 1998, the petitioner was exonerated by the police after completion of the investigation, which was also accepted by the learned Chief Judicial Magistrate, the petitioner may not be compelled to face prosecution in Mohania P. S. Case No.53 of 1998. He submits that in Mohania P. S. Case No.53 of 1998 there is same and similar allegation, as alleged in Mohania P. S. Case No.54 of 1998. He further submits that in view of Sec.300 of the Code of Criminal Procedure as well as Article-20 (2) of the Constitution of India, the petitioner can not be twice prosecuted for the same offence. On these grounds, learned Senior Counsel has virtually prayed that F. I. R. of Mohania P. S. Case No.53 of 1998 be quashed and the petitioner may not be compelled to face prosecution in Mohania P. S. Case No.53 of 1998. 4. Sri A. M. P. Mehta, learned A. P. P. for the State has opposed the prayer of the petitioner. First of all, he submits that at the initial stage of investigation that too only on the basis of perusal of the F. I. R. it would be difficult for this Court to examine as to whether the petitioner was proceeded on same and similar accusation in two cases or not. He further submits that these things can be looked by the concerned court and not by this Court while exercising power under Sec.482 of the Code of Criminal Procedure. 5. I have also minutely examined two F. I. Rs , which have been annexed as Annexures 1 and 2 to the petition. The first F. I. R. ,i. e. Mohania P. s. Case No.53 of 2998 was registered against one accused , who was Panchayat Sewak of the Gram Panchayat-Bhitty. The name of sole accused in the said F. I. R. is Dharmu Ram. The first F. I. R. ,i. e. Mohania P. s. Case No.53 of 2998 was registered against one accused , who was Panchayat Sewak of the Gram Panchayat-Bhitty. The name of sole accused in the said F. I. R. is Dharmu Ram. In the said F. I. R. the specific allegation against Dharmu Ram was regarding dereliction of duty and non-production of official records despite repeated direction. There was also an allegation that Dharmu Ram had misappropriated the Government fund relating to Jawahar Rojgar Yojna. 6. In the second F. I. R. i. e. Mohania P. S. Case No.54 of 1998, of course, the informant was the same, but in the said F. I. R. two persons were named as accused. Those are Dharmu Ram, Panchayat Sewak and this petitioner, who was at the relevant time Mukhiya of the Gram Panchayat. In the second F. I. R. , i. e. Mohania P. S. Case No.54 of 1998, there was specific allegation of misappropriate of fund under the Jawahar Rojgar Yojna. Specifically the amount of misappropriation and dates of misappropriation were mentioned in the said F. I. R. 7. On perusal of both the F. I. Rs. , prima facie I am of the view that one cannot come to the conclusion that in both the F. I. Rs allegations are same and similar. Moreover, in the second F. I. R. i. e. Mohania P. S. Case No.54 of 1998 after investigation the police did not find sufficient materials for sending the petitioner for trial. Only on the ground of non-sending of the petitioner for facing the trial, this plea cannot be taken that the petitioner cannot be asked to face prosecution twice for such allegation. It is evident that only after investigation, final form was submitted by the police and the petitioner was never put on trial. Accordingly, I am of the view that in such a situation, the petitioner may not be allowed to take the protection under Sec.300 of the Code of Criminal Procedure. It would be appropriate to quote the provisions contained in Sec.300 of the Code of Criminal Procedure , which is as follows: 300. Accordingly, I am of the view that in such a situation, the petitioner may not be allowed to take the protection under Sec.300 of the Code of Criminal Procedure. It would be appropriate to quote the provisions contained in Sec.300 of the Code of Criminal Procedure , which is as follows: 300. Person once convicted or acquitted not to be tried for same offence (1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Sec.221, or for which he might have been convicted under sub-section (2) thereof. (2) (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted , may be afterwards tried for such last mentioned offence, if the consequences had not happened , or were not known to the Court to have happened , at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of Sec.26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code. 8. (6) Nothing in this section shall affect the provisions of Sec.26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code. 8. So far as violation of fundamental right in view of Article 20 (2) of the Constitution is concerned, merely on perusal of definition of said Article, one can come to the conclusion that this provision shows that one cannot be prosecuted and punished twice for the same offence. It is also necessary to quote the provisions contained in Article-20 of the Constitution of India.20. Protection in respect of conviction for offences (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself. 9. On perusal of the provision contained in Clause 2 of Article 20 of the Constitution of India, it is evident that this protection is given to a citizen that he cannot be prosecuted and punished for the same offence more than once. In the present case, it is not a case that the petitioner was prosecuted and punished. Even in one case only police had conducted investigation and thereafter he was exonerated. The petitioner was neither prosecuted nor punished for the same offence. Accordingly, I am of the view that in the facts and circumstances of the present case, both provisions i. e. provision under Article 20 (2) of the Constitution of India or Sec.300 Cr. P. C. are not applicable. 10. So far as the allegation made in the first F. I. R. i. e. Mohania P. s. Case No.53 of 1998 is concerned, on perusal of the F. I. R. it is evident that the petitioner was not named in the said F. I. R. This F. I. R. was lodged only against Dharmu Ram, who was Panchayat Sewak. 10. So far as the allegation made in the first F. I. R. i. e. Mohania P. s. Case No.53 of 1998 is concerned, on perusal of the F. I. R. it is evident that the petitioner was not named in the said F. I. R. This F. I. R. was lodged only against Dharmu Ram, who was Panchayat Sewak. Moreover, after lodging the F. I. R. while the case was at the initial stage of the investigation, the petitioner rushed to this Court while invoking inherent jurisdiction of this Court under Sec.482 of the Code of Criminal Procedure by filing the present case. In this case, by the order dated 16.9.1998 while admitting the case , this Court had directed that during the pendency of this application, further proceeding in Mohania P. S. Case No.53 of 1998 appertaining to G. R. Case No.361 of 1998 shall remain stayed. The order of stay is still continuing. 11. In the facts and circumstances of the case,i am of the view that at the initial stage of investigation, it would not be appropriate for this Court to interfere in such cases. Unless a report is submitted by the police before the Magistrate, it cannot be said that a proceeding was pending. In absence of pendency of a proceeding before the Court below, one has got no right to invoke inherent jurisdiction under Sec.482 of the Code of Criminal Procedure. Accordingly, on the ground of maintainability itself, the petition is liable to be rejected. However, without recording my opinion on the point of maintainability of the present case, in the peculiar facts and circumstances of the case, I am of the view that only on perusal of two F. I. Rs, it is difficult for this Court to come to a definite conclusion that the petitioner was made accused twice for the same and similar allegation. Moreover, perusal of the F. I. R. indicates that the allegations are not exactly similar in two F. I. Rs. 12. Accordingly, I do not find any merit in this petition and the petition stands rejected. 13. In view of rejection of the present petition the interim order of stay, which was granted on 16.9.1998, stands automatically vacated. Let this order be communicated to the court below forthwith.