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2012 DIGILAW 627 (JHR)

Bijay Kumar Gupta v. State of Jharkhand

2012-04-24

H.C.MISHRA

body2012
ORDER Heard learned counsel for the petitioner and learned counsel for the State. 2. This application has been filed for setting-aside the order dated 15.2.2012 in T.R. No.77 of 2011 passed by Sri N. Kumar, learned Judicial Magistrate, 1st Class, Giridih, whereby, the application filed by the petitioner under Section 245 Cr.P.C., has been rejected by the Court below holding that there is prima facie case against the petitioner for the offence under Section 406 and 504 of the Indian Penal Code and accordingly the petitioner's application was rejected and he was asked to appear before the Court for framing of the charge. 3. It appears that a complaint petition being Complaint Case No.679 of 2005 was filed in the Court of learned Chief Judicial Magistrate, Giridih by the Complainant-O.P. No.2 Md. Bablu Ansari, wherein the petitioner being the Circle Officer of Giridih and one Dilip Kumar Gupta, Circle Inspector, Giridih Block were made accused. In the said complaint petition, it was alleged by the complainant that he had filed an application for mutation of the land in his favour, which was not done and the accused-petitioner had taken Rs.12,000/-from the complainant on the pretext of compensating the revenue loss to the Government. It is further alleged that the mutation was being deferred on one pretext or the other. It is also alleged that the accused had demanded Rs. 10,000/-as bribe for mutation. With these allegations, complaint petition had been filed against the petitioner and the other co-accused. 4. It appears that the statement of the complainant was recorded on solemn affirmation and it also appears that the complainant examined five witnesses including himself before the charge, who had supported the complainant's case. It further appears that an application was filed by the petitioner for discharge which was rejected by the Court below holding that on the basis of material brought on record, prima facie case was there against the petitioner for the offence under Section 406 and 504 of the IPC and accordingly the application for discharge was rejected by the Court below by the impugned order. 5. Learned counsel for the petitioner submitted that petitioner, being the Circle Officer, is a public servant and there was no sanction as required under Section 197 of the Cr.P.C. and accordingly, the impugned order passed by the Court below is absolutely illegal. 5. Learned counsel for the petitioner submitted that petitioner, being the Circle Officer, is a public servant and there was no sanction as required under Section 197 of the Cr.P.C. and accordingly, the impugned order passed by the Court below is absolutely illegal. Learned counsel has also drawn the attention of this Court towards various documents to show that subsequently the mutation, as prayed for, was rejected by the petitioner on the basis of the report submitted by the Circle Inspector, but these documents cannot be looked into at this stage as they are the defences of the petitioner. Learned counsel has also drawn the attention of this Court towards one FIR filed by the co-accused against the complainant, on the basis of which Giridih Sadar P.S. Case No.134 of 2005 was instituted against the complainant for the offences under Section 386, 504, 506, 341, 379 and 34 of the IPC. It may however, be mentioned that the dates of filing of the FIR and the complaint petition are the same. Learned counsel on the basis of these documents submitted that the petitioner has been falsely implicated in this case and has prayed for setting aside the impugned order passed by the Court below. 6. Learned counsel for the State on the other hand opposed the prayer of the petitioner submitting that on the basis of the allegation made against the petitioner, offence is clearly made out against the petitioner and accordingly the impugned order cannot be interfered with at this stage. 7. After having heard learned counsels for both the sides and upon going through the record, I find that in the present case, there are allegations against the petitioner of accepting Rs.12,000/-from the complainant on the pretext of compensating the revenue loss to the government which was allegedly not returned to the complainant and there is also allegation of illegal demand of Rs.10,000/-from the complainant. These allegations are for such acts, which cannot be said to be done while acting in discharge of an official duty and in that view of the matter, Section 197 of the Cr.P.C. is not at all attracted to the facts of this case. So far other defences of the petitioner are concerned, they cannot be looked into at this stage. So far other defences of the petitioner are concerned, they cannot be looked into at this stage. I also find that on the basis of the allegation made in the complaint petition and the statement of the complainant recorded on solemn affirmation, which have been brought on record, the allegation is made out against the petitioner and I also find from the impugned order that the Court below has taken into consideration the other materials on record also, such as the evidence of the witnesses examined by the complainant before charge and had found that the prima facie case was made out against the petitioner. It is a well settled law that if on the basis of the allegations in the complaint petition, the statement of the complainant recorded on solemn affirmation and the evidence of the witnesses recorded at the enquiry stage, the offence is made out, the inherent power under Sec. 482 of the Cr.P.C., or the extraordinary power under Art. 226 of the Constitution of India cannot be exercised by the High Court for quashing the criminal proceeding at its initial stage. Reference in this regard may be had to the decisions of the Apex Court in State of Haryana and Ors. Vs. Bhajan Lal and Ors., reported in 1992 Supp (1) SCC 335 and in Sunder Babu and Ors. Vs. State of Tamil Nadu, reported in 2009 (3) East Cr C 230 (SC). 8. As such, I do not find any illegality and/or irregularity in the impugned order worth interference in the revisional jurisdiction. There is no merit in this revision application, which is accordingly, dismissed in limine.