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2012 DIGILAW 709 (PAT)

Md. Abul Hasan v. State of Bihar

2012-05-01

JYOTI SARAN

body2012
ORDER 1. Heard Mr. Ram Kishore Singh, learned counsel appearing on behalf of the petitioner and learned Additional Public Prosecutor for the State. 2. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 23.07.2010 passed in Criminal Revision No. 291 of 2007 by the learned Additional Sessions Judge, Fast Track Court No. 3, Purnea, whereby the criminal revision of the petitioner has been dismissed thus upholding the order dated 16.06.2007 passed by the learned Additional Chief Judicial Magistrate, Purnea in Miscellaneous Petition No. 632 of 2007 (C-II 116/2007), whereby the learned Magistrate while treating an application filed for release of the vehicle seized by the petitioner as a complaint, has been pleased to take cognizance of the offence punishable under Section 379 of the Indian Penal Code. 3. The fact of the case in brief is that the petitioner at the relevant time was posted as the District Transport Officer, Purnea. During the course of vehicle checking a truck bearing Registration No. HR 55C/1330 was found operating without valid documents. Neither the driver of the truck Atish Kumar nor the person accompanying him, namely, Sanjay Jha could produce the documents relatable to the vehicle viz. the registration book, the insurance papers, the road permit, fitness certificate etc. In the circumstances, the petitioner deputed for checking the vehicle under the orders of the competent authorities, seized the truck and a seizure list was prepared and the truck was kept within the Maranga Police Station, District-Purnea. Subsequently, the driver of the truck and the person accompanying him Sanjay Jha produced the documents, the examination of which transpired that the certificate of fitness as well as the insurance stood expired. In the circumstances, the petitioner corresponded with the Regional Transport Authority of Haryana for verification of the genuineness of the papers produced by the aforesaid persons. Subsequently, the concerned Transport Authority at Gurgaon, Haryana confirmed that the documents had been issued from his office but since the truck was found to have violated the provisions of the Motor Vehicles Act, hence information was sent through the Police to the vehicle owner to get the vehicle released upon payment of fine but he did not turn up. Subsequently, the concerned Transport Authority at Gurgaon, Haryana confirmed that the documents had been issued from his office but since the truck was found to have violated the provisions of the Motor Vehicles Act, hence information was sent through the Police to the vehicle owner to get the vehicle released upon payment of fine but he did not turn up. Subsequently, a petition was filed by the said Sanjay Jha in the Court of the Chief Judicial Magistrate, Purnea giving rise to Miscellaneous Petition No. 632 of 2007, for release of the truck bearing Registration No. HR 55C/1330. A report was called for from the petitioner, holding the office of the District Transport Officer, Purnea explaining the circumstances under which the truck had been seized. It so appears from the order passed by the Chief Judicial Magistrate that no report was submitted by the petitioner despite several reminders being issued by the Court and in absence whereof the learned Chief Judicial Magistrate exercising powers under Section 190(1) (c ) registered Complaint Case No. C-II 116 of 2007 and took cognizance of the offence punishable under Section 379 of the Indian Penal Code. \ 4. The petitioner questioned the said order passed by the Chief Judicial Magistrate dated 16.06.2007 by filing Criminal Revision No. 291 of 2007 and which stood rejected by order dated 23.07.2010, inter alia, on grounds that the applicant of the Miscellaneous Petition No. 632 of 2007, namely, Sanjay Jha had not been arrayed as opposite party in the criminal revision. 5. Learned counsel for the petitioner has a very short submission to be made. He submits that the Chief Judicial Magistrate as well as the Revisional Court have committed a serious infirmity in treating the petition filed for release of the vehicle as a complaint case and in proceeding pursuant thereto by recording cognizance of the offence punishable under Section 379 of the Indian Penal Code against the petitioner even in absence of there being any prayer to that effect. It is stated that the applicant of the said case, Sanjay Jha, in fact considering the delay being caused by the learned Courts below in ordering release of the vehicle, sought permission to withdraw the release application to move the superior Courts for the said release. It is stated that the applicant of the said case, Sanjay Jha, in fact considering the delay being caused by the learned Courts below in ordering release of the vehicle, sought permission to withdraw the release application to move the superior Courts for the said release. The learned Chief Judicial Magistrate even while dismissing the petition for release vide order passed on 02.07.2007 in the light of the prayer made by the applicant, proceeded on the complaint. 6. Learned counsel for the petitioner, with reference to the definition of complaint set out under Section 2(d) of the Code of Criminal Procedure, (hereinafter referred to as the ‘Code’) submits that a complaint is an allegation in writing to the Magistrate with a view to his taking action against some person whether known or unknown for alleged commission of an offence. It is thus submitted that the action of the Chief Judicial Magistrate in treating the release application as a complaint in absence of any prayer made therein for proceeding against the petitioner under Section 379 of the Indian Penal Code, is without sanction of law and contrary to the legislative intent underlying Section 2(d) of the Code defining a complaint. Mr. Singh, learned counsel has referred to a judgment of the Supreme Court since reported in 2006(2) P.L.J.R. SC 94 (Mohd. Yousuf Vs. Smt. Afaq Jahan & Anr.) and a Bench decision of this Court reported in 2001(1) P.L.J.R. 420 (Rinku Mishra Vs. The State of Bihar & Ors.). 7. I have heard learned counsel for the parties and have perused the materials on record. 8. Learned counsel for the petitioner is right when he says that the release application was not within the meaning of a complaint as defined under Section 2(d) of the Code as it neither contained any allegation of offence of theft against the petitioner nor any prayer had been made for taking any action against the petitioner, in this regard. The said position cannot be contested but the said contention alone is not sufficient to reject the action taken by the learned Magistrate in taking cognizance of the offence against the petitioner. Section 190(1)(c) of the Code inter alia also confers power on the Magistrate to take cognizance of an offence on the basis of information received by him in this regard. Section 190(1)(c) of the Code inter alia also confers power on the Magistrate to take cognizance of an offence on the basis of information received by him in this regard. A power of suo motu cognizance is vested in the Magistrate concerned provided there are circumstances warranting the same. 9. The records of the present case manifests that the power has been exercised merely on account of non-filing of a response by this petitioner. The order impugned reflects as such. 10. Mere non receipt of a report from the petitioner holding the post of the District Transport Officer cannot bring him within the category of an accused and the action of seizure of the vehicle certainly cannot tantamount to a theft. Even assuming that the petitioner had exceeded his jurisdiction in the matter of the seizure of the vehicle in question, unless proved to the contrary, the same at best can be held to be without sanction of law. The petitioner having done so in purported exercise of statutory duty, a serious allegation of theft cannot be attributed on him, in absence of supporting circumstances. 11. For the reasons aforesaid, the order passed by the learned Chief Judicial Magistrate, Purnea in Misc. Petition No.632 of 2007 (C-II 116/2007) dated 16.06.2007 whereby he has taken cognizance of the offence punishable under Section 379 of the Indian Penal Code against the petitioner cannot be sustained. At the same time the action of the petitioner in not responding to the queries of the Chief Judicial Magistrate also cannot be upheld. The petitioner is not above law nor can he avoid responding to judicial orders. Had he responded to the notice of the Chief Judicial Magistrate, Purnea, with suitable explanation, the present situation would not have arisen at all. The petitioner is thus cautioned to be more careful in future in discharging his duties and refrain himself from having a defiant attitude more particularly in matters relating to judicial proceedings. 12. Considering the matter in totality of circumstances this Court is of the opinion that the petitioner having seized the vehicle in discharge of the statutory duty, his not responding to the notices of the Chief Judicial Magistrate, Purnea, cannot bring the alleged seizure within the meaning of a theft. In the result this application is allowed. 12. Considering the matter in totality of circumstances this Court is of the opinion that the petitioner having seized the vehicle in discharge of the statutory duty, his not responding to the notices of the Chief Judicial Magistrate, Purnea, cannot bring the alleged seizure within the meaning of a theft. In the result this application is allowed. The entire proceedings arising from Complaint Case No. C-II 116 of 2007 including the order taking cognizance dated 16.06.2007 along with the order dated 23.07.2010 passed in Cr. Rev. No.291 of 2007 are quashed and set aside.