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2012 DIGILAW 532 (JHR)

Om Prakash Sultania v. State of Bihar

2012-04-10

H.C.MISHRA

body2012
JUDGMENT H.C. Mishra, J. Heard learned counsels for both the sides. 2. This application has been filed for quashing the entire proceeding in complaint case being C.P. Case No. 283 of 2000, as well as, the order dated 20.6.2000 passed therein, by Sri A. K. Singh, learned Judicial Magistrate, Dhanbad, whereby upon enquiry in the complaint case, the Court below has found the prima facie case against the petitioner under Sections 166 and 323 of the I.P.C. and has ordered for issuance of process against the petitioner. 3. The complainant Opposite Party No. 2 had filed a complaint case against the petitioner, who was then posted as Deputy Commissioner, Commercial Taxes, Jharia Circle, Jharia. The complainant is the proprietor of M/s L.D. Brothers, registered under the Bihar Finance Act and it is stated in the complaint petition that on 18.2.2000, he had gone to the Commercial Taxes Officer, Jharia Circle with a request to issue Form 'IX-C' in his favour for business purpose. Some enquiry regarding the dues of admitted tax or return against the firm was made, but the form 'IX-C' was not issued to the complainant, rather a notice was issued to the complainant mentioning therein that the business premises and the office of the complainant would be inspected on 23.2.2000. It is alleged that the accused petitioner declined to issue the form unless the complainant obliged him otherwise. 4. In the complaint petition, it is also alleged that on 23.2.2000 the complainant was asked by the petitioner to meet him in a hotel, but the complainant did not meet him. The petitioner inspected the business premises of the complainant and made some queries and he was also asked to produce the books of accounts on 24.2.2000. On 24.2.2000 again, the complainant was asked to produce the books on 3.3.2000 and in this way, the accused denied the issuance of Form IX-C as the complainant did not oblige the accused petitioner. It is further alleged in the complaint petition that on 15.3.2000, the complainant again met the petitioner for issuance of the said form, on which date, there was some altercation between the parties and the complainant was also assaulted by the petitioner and was threatened to be sent to jail, or to be implicated in a false case. It is further alleged in the complaint petition that on 15.3.2000, the complainant again met the petitioner for issuance of the said form, on which date, there was some altercation between the parties and the complainant was also assaulted by the petitioner and was threatened to be sent to jail, or to be implicated in a false case. With these allegations, the complaint petition was filed in the Court of the Chief Judicial Magistrate, Dhanbad, which was registered as C.P. Case No. 283 of 2000. It appears that the complainant was examined on S.A and he supported the case and he also adduced three witnesses at the stage of enquiry, on the basis of which, the prima facie case was found against the petitioner for the offence under Sections 166 and 323 of the I.P.C. by order dated 20.6.2000 and the process was ordered to be issued against the accused petitioner. It appears from the perusal of the order dated 20.6.2000 passed by the Court below that the Court took into consideration the fact that the petitioner was a public servant as defined under Section 21 of the I.P.C., and whether the protection of Section 197 of the Cr.P.C was available to the petitioner or not, and the Court below found that since the allegation against the petitioner cannot be said to be in pursuance of his acting under the color of official duty, the protection under Section 197 was not available to the petitioner. Aggrieved by the said order, the petitioner has challenged the entire proceeding as well as the order dated 20.6.2000 in the present application filed under Section 482 of the Cr.P.C. 5. In the present application, the petitioner has brought on record a letter as contained in Memo No. 2133 dated 10.12.1999 issued by the Deputy Commissioner, Commercial Tax, Vigilance Bureau, Patna, mentioning therein about the actions to be taken for theft of some sheets of Form 'IX-C' by one Jharia Sales Agency, Jharia, stating that the said Jharia Sales Agency belonged to the complainant, but nothing has been brought on record to show that the said Jharia Sales Agency actually belonged to the complainant Opposite Party. The petitioner has also brought on record the memo dated 23.2.2000 issued by the Inspecting team which had inspected the business premises of the petitioner and found certain irregularities therein and had asked the complainant to file his show-cause by 24.2.2000, making certain queries therein. The petitioner is one of the signatories in the said memo. 6. Learned counsel for the petitioner has submitted that the inspection of the business premises of the complainant was made by the Inspecting team, of which, the petitioner was also a member and since certain irregularities were found therein and action was taken against the petitioner, the present complaint has been filed by the complainant as a counter blast, making false and unbelievable allegations against the petitioner. Learned counsel has further pointed out that no offence under Section 166 of the I.P.C is made out against the petitioner, inasmuch as, from the complaint petition itself, it is apparent that the petitioner had requested the Commercial Taxes Officer, Jharia for issuing Form 'IX-C' in his favour and accordingly, it was the responsibility of the Commercial Taxes Officer to have issued the said form. As such, offence under Section 166 of the I.P.C., if any, shall be applicable against the said Officer and not against the petitioner. 7. So far as the allegation for the offence under Section 323 of the I.P.C is concerned, learned counsel has submitted that the allegations are absolutely false and malicious and the complaint has also been filed with malicious intention for wreaking vengeance against the petitioner for taking action against the complainant while making inspection of the business premises of the complainant. Learned counsel has accordingly, submitted that the case of the petitioner is fully covered by the decision of the Supreme Court of India in State of Haryana & Ors. Vs. Bhajan Lal and Ors., reported in 1992 Supp (1) SCC 335, wherein the Hon'ble Supreme Court of India has laid down the conditions, in which, the High Court can exercise the inherent powers under Section 482 of the Cr.P.C. for quashing the criminal proceeding and the case of the petitioner is fully covered by criteria (5) & (7), as laid down in para 102 therein. 8. Learned counsel further placed reliance upon the decision of the Supreme Court of India in M/s Pepsi Foods Ltd and Anr. Vs. 8. Learned counsel further placed reliance upon the decision of the Supreme Court of India in M/s Pepsi Foods Ltd and Anr. Vs. Special Judicial Magistrate and Ors., reported in AIR 1998 SC 128, wherein, it has been held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of the allegation made in the complaint and the evidence both oral and documentary in support thereof. Learned counsel also submitted that the petitioner was a public servant and was protected under Section 197 of the Cr.P.C. and cognizance of the offence could not be taken against the petitioner without prior sanction of the appropriate Government. Learned counsel accordingly, submitted that the continuance of the criminal proceeding against the petitioner as also the impugned order are absolutely illegal and are fit to be quashed. 9. Learned counsel for the private opposite party, on the other hand, submitted that on the basis of the allegation made in the complaint petition, the offence is clearly made out against the petitioner and accordingly, there is no illegality in the impugned order passed by the Court below. Learned counsel further submitted that there is direct allegation against the petitioner, who was a official of the Commercial Taxes Department to have denied the issuance of Form 'IX-C' against the complainant, as the complainant had refused to oblige the petitioner otherwise and there is also allegation against the petitioner to have assaulted the complainant when the complainant insisted for issuing the said Form. Learned counsel has further submitted that these actions of the petitioner were not at all connected with the discharge of his official function as a public servant and accordingly, the Court below has rightly come to the conclusion that the protection of Section 197 of the Cr.P.C. was not available to the petitioner. Learned counsel accordingly, submitted that there is no illegality in the impugned order, worth interference at this initial stage. 10. After having heard the learned counsels for both sides and upon going through the records, I find that there are specific allegations against the petitioner in the complaint petition regarding not issuing the Form 'IX-C' to the complainant unless he was obliged otherwise. 10. After having heard the learned counsels for both sides and upon going through the records, I find that there are specific allegations against the petitioner in the complaint petition regarding not issuing the Form 'IX-C' to the complainant unless he was obliged otherwise. It is also alleged that when the complainant insisted for the same, he was also assaulted by the petitioner. These allegations certainly make out the criminal case against the petitioner and at this stage, it cannot be said that the allegations are absolutely false or have been made with malicious intention, as because the petitioner had inspected the business premises of the complainant and had asked him to show-cause making certain queries as regards the irregularities found by the Inspecting team. Indeed, the complaint petition shows that the inspection itself was made by the petitioner due to the fact that the complainant had not obliged the petitioner while he had gone to the commercial tax office for supply of Form IX-C in his favour. 11. In the present case, even though, it is submitted by the learned counsel that the case has been instituted with oblique motive and mala fide intention, but in the facts of the present case, I am of the considered view that the allegation of mala fides would be of no ground for quashing the prosecution against the petitioner. In State of Maharastra Vs. Ishwar Piraji Kalpatri & Ors., reported in 1996 (1) SCC 542 , it has been laid down by the Apex Court as follows :- “22. In fact, the question of mala fides in a case like the present is not at all relevant. If the complaint which is made is correct and an offence had been committed which will have to be established in a court of Law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of malafides, would be no ground for quashing the prosecution.” 12. In Eicher Tractor Ltd. & Ors. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of malafides, would be no ground for quashing the prosecution.” 12. In Eicher Tractor Ltd. & Ors. Vs. Harihar Singh & Anr., reported in 2008 (16) SCC 763 and in the case of Sunder Babu & Ors. Vs. State of Tamil Nadu, reported in 2009 (3) East Cr C 230 (SC), the Supreme Court of India has laid down that in a proceeding instituted on a complaint, the exercise of inherent powers to quash the proceeding is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. In Sunder Babu’s case (supra), the law has been laid down as follows :- “8. -----The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. ----------” 13. In the facts and circumstances of the case, I am of the considered view that the offences are made out against the petitioner on the basis of the allegation made in the complaint petition. The allegations against the petitioner are such that they are not at all connected with the discharge of his official function as a public servant and accordingly, the Court below has rightly come to the conclusion that the protection of Section 197 of the Cr.P.C. was not available to the petitioner. Indeed, the complainant alleged that the inspection itself was made by the petitioner due to the fact that the complainant had not obliged the petitioner otherwise. Indeed, the complainant alleged that the inspection itself was made by the petitioner due to the fact that the complainant had not obliged the petitioner otherwise. Even though, according to the petitioner, the complaint was filed with oblique motive and mala fide intention in order to wreck vengeance against the petitioner, but in the facts of this case and in view of the settled principles of law as discussed above, I find that it is not a fit case where this Court should exercise either its extraordinary powers under Article 226 of the Constitution of India, or its inherent powers under Section 482 of the Cr.P.C for quashing the criminal proceeding against the petitioner at this initial stage. 14. In view of the aforementioned discussions, I do not find any merit in this application and the same is, accordingly, dismissed.