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2010 DIGILAW 644 (PAT)

Kailash Ram v. State Of Bihar

2010-04-06

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar and j. JJ. 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 entire proceeding arising out of Complaint Case No.734 of 1998/t. R. No.616 of 1998 pending before Shri A. K. Bashishta, Judicial Magistrate, Rohtas at Sasaram. It has also been prayed for quashing of the order dated 9.10.1998 whereby the learned Magistrate had taken cognizance of the offence under sections 323, 341, 504 and 379 of the Indian Penal Code. 2. Learned counsel for the petitioner, while challenging the criminal proceeding pursuant to the complaint case no.734 of 1998/616 of 1998, has submitted that the complaint petition was filed by the complainant maliciously. He further submits that bare perusal of the complaint petition makes it clear that false allegation was levelled against the petitioner and others. He submits that the petitioner at the relevant time was the District Co-operative Officer, Sasaram, and the complainant was Secretary of Sasaram Matasyajivi Sahyog Samiti. He submits that since the petitioner in the capacity of District Co-operative Officer had taken action against the complainant/sasaram Matasyajivi Sahyog Samiti, the complainant with a view to create defence maliciously filed a complaint petition. He further submits that the order of cognizance is vitiated in view of the fact that prior sanction for prosecution of the petitioner from the competent authority was not obtained. Accordingly, he has prayed for quashing of the order of cognizance as well as entire proceeding, so far as the petitioner is concerned, in the complaint case in question. Learned counsel for the petitioner, while referring Annexure 4 to the petition, which is a letter sent by the petitioner to the District Magistrate, Rohtas, submits that in respect of filing of the present complaint petition the petitioner had given explanation to the District Magistrate and he has categorically stated in the said letter vide its memo no.458 dated 5.10.1998 that the complainant being Secretary of the Samiti had never produced the record before the District Cooperative Officer or its officials and due to that reason proceeding under Sec.45 of the Bihar Cooperative Societies Act has been initiated against this petitioner. 3. Learned counsel for the State vehemently opposed the prayer of the petitioner. He submits that contents of the complaint petition itself categorically specify that the offence was 3 committed by the petitioner. 3. Learned counsel for the State vehemently opposed the prayer of the petitioner. He submits that contents of the complaint petition itself categorically specify that the offence was 3 committed by the petitioner. The complainant was assaulted by this petitioner. He submits that there is no reason to disbelieve the allegation leveled in the complaint petition. He further submits that so far as question of sanction is concerned the same can be considered during the trial. This is not the stage to raise all the points. 4. I have perused the impugned order as well as materials available on record and also examined the complaint petition. In the complaint petition one of the allegations is that all the accused persons assaulted the complainant. So far as prior sanction for prosecution, in the present case, is concerned, I am of the view that allegation which has been leveled against this petitioner is not in relation to discharge of his official duties and in a case of allegation not relating to discharge of official duties, sanction for prosecution under Sec.197 of the Cr. P. C. is not required. So far malicious prosecution is concerned, I am of the view that in the petition which has been filed before this Court no such specific assertion has been made by giving details to show that the petitioner had taken steps against the complainant and only due to that reason a false case was filed by the complainant. On perusal of Annexure 4 to the petition it is evident that the said memo was sent to the District Magistrate after filing of the present complaint petition. The present complaint petition, which is evident from Annexure 2, was filed on 4.9.1998. However, Annexure 4 contains the date as 5.10.1998. I have also examined the order of cognizance dated 9.10.1998. I do not find any error in the order of cognizance nor I am convinced with the plea of the petitioner that the complaint petition was filed maliciously. As such, I am of the view that there is no merit in the present petition. Accordingly, the petition stands rejected. 5. By order dated 26.2.1999 while issuing notice to opposite party no.2, this court had directed that until further order the proceedings as against the petitioner in Complaint Case No.734 of 1998/t. R. No.616 of 1998 pending before Sri A. K. Bashishth, Judicial Magistrate, Sasaram shall remain stayed. Accordingly, the petition stands rejected. 5. By order dated 26.2.1999 while issuing notice to opposite party no.2, this court had directed that until further order the proceedings as against the petitioner in Complaint Case No.734 of 1998/t. R. No.616 of 1998 pending before Sri A. K. Bashishth, Judicial Magistrate, Sasaram shall remain stayed. Subsequently, on 22.7.1999 the petition was admitted and, while admitting the case, this court had directed that during the pendency of this application further proceedings in the court below shall remain stayed. In view of rejection of this petition, the order of stay stands automatically vacated. 6. Let this order be communicated to the court below forthwith.