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2013 DIGILAW 1221 (PAT)

Suresh Kumar Pathak v. State of Bihar

2013-10-08

AHSANUDDIN AMANULLAH

body2013
ORAL ORDER Heard learned counsel for the petitioners, learned A.P.P. for the State and learned counsel appearing for the opposite party no. 2. 2. The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) has been preferred for quashing of the order dated 16.04.2012 passed by the Chief Judicial Magistrate, Rohtas at Sasaram in Complaint Case No. 1014 of 2009 by which cognizance has been taken against the petitioners under Sections 385/379 of the Indian Penal Code. 3. The allegation, as per the complaint, is that the petitioners, being the officers of the Forest Department, had asked for extortion money with regard to a Tractor-Trailer on which stone chips were being carried and upon refusal, the same is said to have been seized illegally and kept in the local Forest Department Office. 4. Learned counsel for the petitioners submits that it is not in dispute that the petitioners were acting in their area of jurisdiction and that the act was committed in the capacity of being public servants. Learned counsel submits that the complaint case is by way of a counter case to create a defence since on 24.06.2012, a Tractor-Trailer without having any registration number was caught with stone chips for which no valid papers were produced and accordingly the same was seized and kept in the local Forest Department Office. In this regard, a written complaint was also filed before the Chief Judicial Magistrate, Rohtas at Sasaram which clearly disclosed that no paper was produced with regard to the stone chips and that the vehicle (Tractor-Trailer) did not have any registration number. Learned counsel submits that from perusal of the complaint case it would be obvious that the incident alleged is the same, which is the subject matter of the complaint by the petitioners before the Chief Judicial Magistrate on 24.07.2009. Learned counsel submits that it is obvious that the petitioners were acting in the discharge of their official duty since by virtue of holding the office under the Forest Department, they were authorised to check and seize vehicles carrying stone chips. Learned counsel submits that in view of the same, taking of cognizance without due sanction by the State Government as stipulated under Section 197 of the Code is itself bad in law. Learned counsel submits that the defence of the opposite party no. Learned counsel submits that in view of the same, taking of cognizance without due sanction by the State Government as stipulated under Section 197 of the Code is itself bad in law. Learned counsel submits that the defence of the opposite party no. 2 with regard to such transportation being valid, cannot be believed since in the complaint itself the registration number of the Tractor-Trailer has not been disclosed which proves that the complaint made before the Chief Judicial Magistrate by the petitioners with regard to the seizure is correct. Learned counsel submits that the validity of having a mining licence is not relevant for the present since the allegation is that the Tractor-Trailer was caught without having registration number and also without having valid papers with regard to the stone chips which were found on the Trailer and thus the onus was on the party who was caught in possession of the same to satisfy the authorities (petitioners) and in the absence of the same, if the petitioners took the recourse available to them under the law and also which they were obliged to do as public servants, of seizing the Tractor-Trailer and the stone chips and taking it to the Forest Department Office for safe keeping, can neither be faulted nor any criminal proceeding can be initiated against them. Learned counsel submits that the order taking cognizance is prima facie erroneous for the reason that despite there being no allegation of any theft, cognizance has also been taken under Section 379 of the Indian Penal Code. As far as Section 385 of the Indian Penal Code is concerned, learned counsel for the petitioners submits that the same is also not proper which would be clear from the definition of the term “extortion” as contained in Section 383 of the Indian Penal Code which stipulates that “Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion". It is submitted that admittedly in the present case there is only allegation of demand of Rs. It is submitted that admittedly in the present case there is only allegation of demand of Rs. 5,000/- which was never paid and thus there cannot be any question of any person delivering any property or valuable security since no money changed hands. It is thus submitted that the petitioners being Government Servants and having performed their duty diligently are being unnecessarily harassed by this vexatious prosecution which has been instituted for wreaking vengeance and settling personal grudge. 5. Learned A.P.P. for the State submits that the stone chips were caught without papers and thus the action of the petitioners can neither be said to be without jurisdiction nor would fasten any criminal liability on them. 6. Learned counsel for the opposite party no. 2 has filed a counter affidavit in which the stand is taken that there was valid mining lease in favour of the opposite party no. 2 from which the said stone chips were mined. Learned counsel has further submitted that the police as well as the Assistant Director of the Mining Department have also written to the Court concerned stating that the place from which the seizure was effected is outside the reserved forest area. Learned counsel has drawn the attention of this Court to the report by the police dated 10.12.2011 to the Court in which it is stated that during investigation it was found that when the Tractor-Trailer was coming on the road, the officer of the Forest Department had stopped the same and asked for the papers on which the driver had shown the challan but which was said to be not proper by the officers and the vehicle along with the stone chips was seized. He submits that in view of the fact that for extraneous consideration, the officers of the Forest Department not only harass genuine persons who were in the business of mining but also extort money from them. 7. Learned counsel for the petitioners, by way of reply, submits that the contentions of learned counsel for the opposite party no. 2 are not germane in the present case inasmuch as the question of seizure being effected inside the forest area is not the issue. The simple reason for which the vehicle was seized was that at the relevant time no valid papers were produced showing the stone chips to be legally mined or the Tractor-Trailer bore any registration number. 2 are not germane in the present case inasmuch as the question of seizure being effected inside the forest area is not the issue. The simple reason for which the vehicle was seized was that at the relevant time no valid papers were produced showing the stone chips to be legally mined or the Tractor-Trailer bore any registration number. The petitioners having done what was required of them by seizing the vehicle and the stone chips and taking it to the local Forest Department Office for safe keeping, cannot be said to have acted beyond jurisdiction or with any criminal intent. Learned counsel submits that there is a categorical statement in the complaint that when the driver of the Tractor produced the challan, the same was taken and torn away by the petitioners whereas the police have stated that the challan was shown but not accepted by the petitioners. He submits that this dispute with regard to the actual sequence of events is immaterial since from the facts which have come on record or have been pleaded, at least this much is admitted that the petitioners were acting in their official capacity and that the seizure was for the reason that the vehicle did not bear any registration number and there were no valid papers to show that the stone chips were from a quarry having a valid licence. Learned counsel submits that the opposite party no. 2 cannot take the plea that it was beyond his jurisdiction to seize a vehicle which did not have valid registration number for the simple reason that as a public servant, the vehicle which is entitled to carry any forest or mining product, the same is expected in law to be a vehicle legally permitted for such purpose. When such vehicle did not have any registration number, in the eyes of law, the plying of such vehicle itself becomes illegal and thus any action of carrying any goods becomes equally illegal. However, even on admitted facts of the case, the cognizance, according to him, under the aforesaid sections cannot be upheld. 8. Upon considering the rival contentions and the facts and circumstances of the case as well as the materials available on record, this Court finds substance in the submissions of learned counsel for the petitioners. However, even on admitted facts of the case, the cognizance, according to him, under the aforesaid sections cannot be upheld. 8. Upon considering the rival contentions and the facts and circumstances of the case as well as the materials available on record, this Court finds substance in the submissions of learned counsel for the petitioners. From the plain reading of the complaint case, no offence can be said to be made out under Sections 379 or 385 of the Indian Penal Code. Further, the act alleged clearly comes within the purview of the bar of Section 197 of the Code. From the reading of the present complaint petition, the complaint filed by the petitioners before the Chief Judicial Magistrate as well as the statements made in the counter affidavit, this Court clearly comes to the conclusion that the complaint case is only by way of a counter case to create a defence by which the seizure made by the petitioners could be countered. Thus, the criminal prosecution pursuant to the complaint case is clearly an abuse of the process of the Court and is not fit to proceed. Accordingly, this Court in exercise of its inherent powers under Section 482 of the Code quashes the Complaint Case No. 1014 of 2009 as well as the order dated 16.04.2012, as far as it relates to the petitioners. 9. The application stands allowed.