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2012 DIGILAW 1297 (PAT)

Kashi Kumar v. State of Bihar

2012-09-12

HEMANT KUMAR SRIVASTAVA

body2012
ORDER Heard learned counsel for petitioner, learned counsel for Opposite party No. 2 and learned Addl. P.P. for the state. 2. This petition u/S 482 Cr. P.C. has been filed on behalf of the petitioner for quashing the order dated 29-01-2009 passed by Sri S.N. Ram, Judicial Magistrate-Ist Class, Begusarai in Complaint Case No. 865 C of 2008 by which and whereunder, he, having found prima facie case u/S 119, 120B, 201, 217, 381, 424 of the Indian Penal Code, ordered to issue summons against the petitioner and other accused persons. 3. The brief fact which lies to file this quashing petition is that Opposite Party No. 2, namely, Arun Thakur filed Complaint Case No. 865 C of 2008 against the petitioner and six others in the court of learned Chief Judicial Magistrate, Begusarai alleging therein inter alia that on 19-07-2002, he purchased some lands from accused, Parasnath Poddar and paid the entire consideration amount. The sale deed of the aforesaid purchase was prepared but when the document was presented before the Sub Registrar for registration, the accused Parasnath Poddar did not turn up and after that, the Registrar opened Refusal Case No. 34 of 2002 and issued notices to accused, Parasnath Poddar. On 26-11-2002, accused, Parasnath Poddar as well as Heeralal Poddar appeared before the Sub Registrar and accused, Heera Lal Poddar disclosed this fact that accused, Parasnath Poddar was mentally ill and he was guardian of the aforesaid accused, Parasnath Poddar. The Sub Registrar though disbelieved the aforesaid assertion but rejected the registration of the above-stated sale deed. After the aforesaid rejection order, the Opposite Party No. 2 filed Registration Appeal No. 43 of 2003 before the District Magistrate-cum-District Registry Officer. It is further alleged that after due deliberation with his learned counsel, the Opposite Party No. 2 filed Complaint Case No. 89 C of 2005 against accused, Heeralal Poddar and Parasnath Poddar which is still pending in the court of Sri A.K. Ram, Judicial Magistrate-Ist Class, Begusarai. It is further alleged that after due deliberation with his learned counsel, the Opposite Party No. 2 filed Complaint Case No. 89 C of 2005 against accused, Heeralal Poddar and Parasnath Poddar which is still pending in the court of Sri A.K. Ram, Judicial Magistrate-Ist Class, Begusarai. It has further been stated that in both the aforesaid cases, the Opposite Party No. 2 filed Photostat copy of the said sale deed but the court asked for original document and after that, the Opposite Party No. 2 directed his clerk to obtain the certified copy of the aforesaid sale deed but even after several petitions, neither the aforesaid document nor its certified copy was ever handed over to the Opposite Party No. 2 and thereafter, he gave a legal notice to the officials of the registry office and also filed a petition under the provision of Right to Information Act and then, the registry office gave information to this effect that the original sale deed was not available with the record of Rejection Case No. 34 of 2002 and the Registry Office after great persuasion, only issued the certified copy of order of Sub Registrar. It has further been alleged that the petitioner as well as other accused, having entered into conspiracy, got removed the aforesaid valuable document from the record with an intent to destroy the evidence of Complaint Case No. 89C of 2005. 4. The learned lower court conducted an inquiry u/S 202 of the Cr.P.C. and having found prima facie case under the above-said sections, passed the impugned order dated 29-01-2009 against which, this quashing petition has been filed. 5. Notices were issued to Opposite Party No. 2 who appeared in this petition. 6. Learned counsel appearing for the petitioner submits that according to complaint case itself, the order in Rejection Case No. 34 of 2002 was passed on 26-11-2002 and after that, the Opposite Party No. 2 filed appeal before the District Magistrate-cum-District Registration Officer in the year, 2003. Notices were issued to Opposite Party No. 2 who appeared in this petition. 6. Learned counsel appearing for the petitioner submits that according to complaint case itself, the order in Rejection Case No. 34 of 2002 was passed on 26-11-2002 and after that, the Opposite Party No. 2 filed appeal before the District Magistrate-cum-District Registration Officer in the year, 2003. It is further contended by him that at the relevant time, the petitioner was not posted in Begusarai district and the then Sub Registrar handed over charge to his office to the petitioner on 20-07-2005 in the light of Notification No. 1535 dated 30-06-2005 which is evident from perusal of Annexures-3 and 4 to the supplementary affidavit and, therefore, it is clear that at the time of alleged occurrence, the petitioner was not posted as Sub Registrar, Begusarai. It is further contended by him that no doubt, at the time of filing of the complaint petition, the petitioner was working as Sub Registrar, Begusarai and he gave reply to the questions asked by the Opposite Party No. 2 through his petition filed under the provision of Right to Information Act but mere giving reply to the questions of Opposite Party No. 2, does not show that the petitioner was custodian of the record of Rejection Case No. 34 of 2002. It is further contended by him that as a matter of fact, one Anjani Kumar Sinha, the then head clerk of Registry Office, Begusarai was custodian of the record and, if any document is found to be missing, then only Anjani Kumar Sinha is responsible for missing of the said document. Moreover, mere missing of the document does not constitute any criminal offence. It is further contended by him that admittedly, Sub Registrar performs quashi judicial function, so, at best, it can be said that the Registrar is custodian legacy of the record. It is further contended by him that the alleged occurrence is said to have been taken place in discharge of official duty of Sub Registrar and, therefore, sanction order was also required before prosecution of the petitioner. In support of his contention, he referred a decision reported in AIR 2001, Supreme Court 2547. 7. It is further contended by him that the alleged occurrence is said to have been taken place in discharge of official duty of Sub Registrar and, therefore, sanction order was also required before prosecution of the petitioner. In support of his contention, he referred a decision reported in AIR 2001, Supreme Court 2547. 7. On the other hand, learned counsel appearing for the Opposite Party No. 2 submitted that the petitioner being Sub Registrar of registry office, was custodian of the entire documents of the registry office and, therefore, if any document is found missing, then the petitioner is responsible for the aforesaid missing of the document. It is contended by him that it is specific case of the Opposite Party No. 2 that the petitioner and other accused having entered into conspiracy, committed the alleged occurrence and, therefore, sanction for the prosecution is not required. It is further contended by him that moreover, the sanction can be obtained at any stage of the trial and so far as the plea of alibi of the petitioner is concerned, the same is a matter of trial. 8. Having heard the rival contentions of both the parties, I have gone through the record. 9. Admittedly, when Rejection Case No. 34 of 2002 was disposed of, the petitioner was not working as Sub Registrar, Begusarai and for the first time, he joined at Begusarai registry in the year, 2005 i.e. after three years of disposal of the aforesaid Rejection Case No. 34 of 2002. Admittedly, the aforesaid Rejection Case No. 34 of 2002 was disposed of by the then Sub Registrar vide his order dated 26-11-2002 and the petitioner joined Begusarai registry office on 20-07-2005 and, therefore, between the period of 26-11-2002 to 20-07-2005, the petitioner was not custodian of the aforesaid record. It is not specific case of the Opposite Party No. 2 as to when the original document of Rejection Case No. 34 of 2002 was removed and, therefore, in my view, the prosecution of the petitioner is nothing but only an abuse of process of the court. 10. It is not specific case of the Opposite Party No. 2 as to when the original document of Rejection Case No. 34 of 2002 was removed and, therefore, in my view, the prosecution of the petitioner is nothing but only an abuse of process of the court. 10. No doubt, sanction order can be produced at any stage of the trial before pronouncement of the judgment but the instant case relates to missing of an official document and it is not specific as to when the aforesaid document was removed and, therefore, in my view, before prosecution of the petitioner, sanction order is required. 11. On the basis of aforesaid discussion, I am of the opinion that the prosecution of the petitioner is nothing but only an abuse of process of the court and, accordingly, this quashing petition is allowed and the order dated 29-01-2009 passed by Sri S.N. Ram Judicial Magistrate-Ist Class, Begusarai is, hereby quashed in respect of petitioner only. 12. In the aforesaid manner, this quashing petition stands disposed of on admission stage itself.