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2011 DIGILAW 493 (JHR)

Yogendra Tiwary v. The State of Jharkhand

2011-06-14

D.K.SINHA

body2011
Order The petitioners have invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for the quashment of their entire criminal proceeding arising out of Godda (Town) P.S. Case No.73 of 2006, corresponding to G.R.No. 267 of 2006, pending before the C.J.M., Godda for the alleged offence under Sections 452/166/120B/34 of the Indian Penal Code. The police after investigation submitted charge-sheet against as many as three accused persons Yogendra Tiwary, Arvind Singh but the co-accused Munna Tiwari was shown absconder therein. 2. The prosecution story in short was that when the petitioner Yogendra Tiwari, who was the Jail Zamadar and was Incharge of the Jail in absence of the Superintendent of Jail who had gone out on his official duty, it was alleged that he along with Arvind Singh and about 12-15 unknown culprits including one veteran criminal Munna Tiwari and with the members of band party unauthorizedly entered in the periphery of the Jail premises by getting the door of the jail opened and terrorized the inmates of the jail in various manner. On the opposition made by the prisoners of Jail, they were threatened to be killed by the criminals of the State level. The entire episode was enquired by the C.J.M., Godda under the instruction of the District and Sessions Judge, Godda in which the complicity of the petitioners and others were found to be true. 3. The main contention of the learned Counsel is that since the petitioners were the employees of the jail at the relevant time and they were authorized to enter into the jail premises in such situation no offence much less the offence alleged under Sections 452/34 of the Indian Penal Code shall be attracted against any of them. 4. Section 452 of the Indian Penal Code deals with Housetresspass after preparation of hurt, assault or wrongful restraint which speaks: "Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear or hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The offence was triable by any Magistrate." 5. The offence was triable by any Magistrate." 5. House trespass has been defined under Section 442 of the Indian penal Code which speaks;- "Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit " house-trespass. The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass." 6. Learned Counsel submitted that though the fact has not been brought on the record but by filing certified copy of the order dated 01.03.2011 recorded by Shri Biresh Kumar, Judicial Magistrate, 1st Class, Godda in G.R.No.267 of 2006, corresponding to T.R.No.302 of 2011, charge against the petitioners and another Munna Tiwari was framed for the alleged offence under Sections 452/34/120B/166/34 of the Indian Penal Code and they have been put on trial, Yet, no offence under Sections 452/32 could be made out against these two petitioners who were admittedly the employees of the Godda Jail and had authority to enter into the periphery of the jail premises. 7. None appears on behalf of the State-Opposite Party when the case is called out. 8. I have carefully gone through the report of the C.J.M., Godda at page 22 (Annexure-3) which is submitted to the District and Sessions Judge, Godda after enquiry of the entire episode which took place in the night of 26.03.2006 in Mdnal Jail, Godda which is based upon the statements of the inmates of Jail wherein the learned C.J.M. stated that in the said night about 15/20 notorious persons entered into the periphery of Jail accompanying by the five members of the band party together with local anti-social elements who terrorized the inmates of the Jail. The petitioners Yogendra Tiwary and Arvind Singh though were the Senior employees of the jail but they had allowed the anti-social elements to enter into the jail premises with illegal arms and that he found the allegation true against the petitioners also. 9. The petitioners Yogendra Tiwary and Arvind Singh though were the Senior employees of the jail but they had allowed the anti-social elements to enter into the jail premises with illegal arms and that he found the allegation true against the petitioners also. 9. Having regard to the facts and circumstances of the case, I find that though the petitioners were the employees of the jail and had authority to enter into the Jail premises but they prima facie illegally and unauthorizedly entered in the night and allowed the anti-social elements to enter into the Jail premises and therefore, they cannot be exonerated from their criminal liability for the alleged charge subject to the evidence appearing in course of trial. This petition is accordingly dismissed without prejudice being devoid of merit.