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2010 DIGILAW 784 (PAT)

Arun Kumar Nagwansi v. State Of Bihar

2010-04-16

RAKESH KUMAR

body2010
JUDGEMENT RAKESH KUMAR, J. 1. When the case was called out Sri Sanjeev Kumar Mishra, learned counsel appearing on behalf of the petitioners informed the Court that Arun Kumar Nagwansi (petitioner no.1 in Cr.Misc.No.7838 of 1999) and Sairash Khalkho( petitioner no.4 in Cr.Misc.No.7909 of 1999) died during the pendency of the applications. Accordingly, their cases stands abated. 2. Since all these three petitions arise out the order dated 1.2.1999 passed by the Judicial Magistrate, Patna in Kotwali P.S. Case No.283 of 1996,T.R.No.1019 of 1999, the same are being disposed of by this common judgment/order. 3. The petitioners, who are employees in the Postal Department, have been made accused in Kotwali P.S. Case No.283 of 1996 for the offences under Sections 467,: 471, 419 and 120B of the Indian Penal Code. In the case allegation against the accused persons is that the private accused persons in connivance with public servant of the Postal Department have committed fraud by misappropriating some amount of, the Postal Department. The allegation was that an amount of Rs.14, 000/- was fraudulently withdrawn from the head of National Savings Certificate. 4. Sri Mishra, learned counsel for the petitioners submits that neither in the F.I.R. there was any allegation against the petitioners nor during investigation the police collected any material against these petitioners. Even then the petitioners were chargesheeted along with the private accused persons and on the basis of said chargesheet, the learned Magistrate vide order dated 1.2.1999 passed in T.R.No.1019 of 1999 arising out of Kotwali P.S. Case No.283 of 1996 has taken cognizance of the offences aforementioned. He further submits that on same and similar facts, the Department also wanted to conduct a departmental proceeding and a preliminary enquiry was conducted and during the said enquiry the departmental authority found that payment was made in accordance with law. By referring to Annexure-2 to the petition, which is typed copy of a communication issued by the Chief Postmaster, G.P.O., Patna Sri Mishra submits that the Chief Postmaster had also intimated the Superintendent of Police regarding innocence of these petitioners. Ignoring all those materials, the police submitted chargesheet and without any material, the learned Magistrate in mechanical way had taken cognizance of the offences as mentioned above. 5. Sri A.M.P. Mehta, learned counsel appearing on behalf of the State has opposed the prayer of the petitioners. Ignoring all those materials, the police submitted chargesheet and without any material, the learned Magistrate in mechanical way had taken cognizance of the offences as mentioned above. 5. Sri A.M.P. Mehta, learned counsel appearing on behalf of the State has opposed the prayer of the petitioners. It was submitted that it was a police case and allegation was of misappropriation of public fund and, as such, at the initial stage this Court may not interfere in the matter. 6. I am of the view that at this stage it is not desirable to interefere with the order of cognizance. 7. Sri Sanjeev Kumar Mishra has alternatively argued that if the order impugned is not interfered with, liberty may be granted to the petitioners to raise all the grounds, which have been mentioned in these petitions, to be taken at the stage of charge. Of course, such defence can be taken at the stage of defence not at the stage of charge, but keeping in view the peculiar facts and circumstances of the present case I am of the view that for the ends of justice the petitioners can be allowed to raise all these grounds at the stage of charge and if such petition is filed by the petitioners before the court below at the appropriate stage, it is expected that the learned Magistrate will examine the same and before passing order at the stage of charge, the learned Magistrate will examine the case diary and other materials available on the record and thereafter he will pass a reasoned order. 8. Accordingly, all the aforesaid petitions are dismissed as withdrawn. 9. On 2.9.1999 the present petition was admitted for hearing and while admitting the case for hearing, this Court had directed that during the pendency of this application, further proceeding with regard to the petitioners in the court below shall remain stayed. 10. In view of rejection of this petition, the interim order of stay stands automatically vacated. Let this order be sent to the court below forthwith.