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2012 DIGILAW 300 (PAT)

Pramod Kumar Srivastava v. State of Bihar

2012-02-22

RAKESH KUMAR

body2012
ORDER Heard Shri Mahesh Narayan Prabat, learned counsel for the petitioner, Shri Hirday Prasad Singh, learned Additional Public Prosecutor, who appears on behalf of opposite party no.1/State and Shri Brij Mohan Prasad Singh, learned counsel appearing on behalf of opposite party no.2/complainant. 2. The petitioner, who was Chief Manager, Punjab National Bank, Bhojpur (Ara) at the relevant time and authorized officer under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”), has approached this Court for quashing of an order dated 12.11.2008 passed by Sub Divisional Judicial Magistrate, Ara in Case No.1603(C) of 2008/2747 Tr/2008, whereby the learned Magistrate had taken cognizance of offence under Sections 323, 342, 452, 500 and 504 of the Indian Penal Code and directed for issuance of processes against the petitioner and other three accused persons, who were arrayed as accused in the complaint petition. 3. Short fact of the case is that complainant had alleged in the complaint petition that the accused persons un-authorizedly ousted the complainant and his family from their house and threw their articles. It has been pleaded by the petitioner that the house in question was mortgaged by one Binda Kumari, who has been arrayed as Accused No.4 for obtaining loan to the tune of Rs.4 lacs from the Punjab National Bank, Ara and since the loan amount was not repaid, the Bank had taken steps under the SARFAESI Act and the petitioner, being Chief Manager of the Bank, was made authorized officer and in that capacity, he had taken steps for taking possession of the house in question and possession has already been taken over by the Bank. He further submits that under Section 32 of the SARFAESI Act, no prosecution was liable to be initiated against the petitioner since he had acted as an authorized officer under the Act. 4. Shri Brij Mohan Prasad Singh, learned counsel for opposite party no.2 has fairly submitted that other two officials, namely, Ranjit Prasad Sinha, Manager, and Rakesh Kumar Sinha against whom also processes were directed to be issued by order impugned dated 12.11.2008 i.e. by the same order by the learned Magistrate had filed a revision petition before the learned Sessions Judge, Bhojpur at Ara vide Cr. Revision No.21 of 2009, which has been allowed mainly on the ground that prosecution was not liable to be initiated under Section 32 of the SARFAESI Act. 5. In view of stand taken by the parties, particularly the fact that in respect of two official accused persons taking aid of Section 32 of the SARFAESI Act, order of cognizance has been set aside, there is no reason to deny the relief to the petitioner whose case stands on better footing than other two accused persons. 6. Accordingly, the impugned order i.e. order dated 12.11.2008 passed by Sub Divisional Judicial Magistrate, Ara in Case No.1603(C) of 2008/2747 Tr/2008 is hereby set aside and the petition stands allowed. ?