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2013 DIGILAW 228 (PAT)

Philip Phembuar Marandih v. State of Bihar

2013-02-19

ASHWANI KUMAR SINGH

body2013
ORDER Heard learned counsels for the petitioners and the State. 2. The petitioners are seeking quashing of first information report of Nagar P.S. Case No.302 of 2004 dated 3.10.2004, registered for the offence under sections 341, 147, 323 and 504 of the Indian Penal Code and subsequent orders taking cognizance and issuing process against the petitioners. 3. The prosecution case is based on the written report of Sri S. Abhishai which was submitted to the police on 3.10.2004 in respect of an occurrence which took place on the same day at about 7 p.m. From the formal first information report, it would transpire that the matter was reported to the police at about 9.30 p.m. on 3.10.2004 and immediately, thereafter, the case was registered. 3A. The informant alleged in the first information report that he is Principal of St. Paul School, Begusari. According to him, he had established the school in the year 1997 after taking loan from several persons. The school was being run in a rented house. However, subsequently, in order to run the school smoothly, a trust was formed, in which, the petitioner no.1 (Philip Phembuar Marandih) was made Sleeping Chairman but he had no right to interfere in any matter of the school. 4. The informant has further alleged that the petitioner no.1 and his wife used to frequently interfere in the matter of the school. On 20.1.2004, they had abused and assaulted some teachers of the school for which a criminal complaint was instituted against them in the court by one of the teacher, namely, Sri K.S.Nisad. 5. The informant has further alleged that a title suit, bearing Title Suit No.241 of 2004, has also been instituted in this regard which is pending in the court. It has further been alleged that on 3.10.2004 at about 7 p.m. the petitioners along with twenty other unknown, being variously armed, came to the premises of the school in order to capture the building. On receipt of information by the informant some teachers of the school were sent to take stock of the situation. When the security guard and other teachers of the school protested against the manner in which the petitioners and other miscreants had barged into the premises of the school, they abused and assaulted them. The accused persons took away some documents and other articles of the school. 6. When the security guard and other teachers of the school protested against the manner in which the petitioners and other miscreants had barged into the premises of the school, they abused and assaulted them. The accused persons took away some documents and other articles of the school. 6. On the basis of such information, the aforesaid first information report, was registered and investigation was taken up. The police, on conclusion of investigation, has already submitted chargesheet in the case. 7. Learned counsel for the petitioners contended that the Church of North India Patna Dioceses is headed by the Bishop and the petitioner no.1 (Philip Phembuar Marandih) is the Bishop of Patna Dioceses Church of North India. He is incharge of St.Paul’s School, Begusarai along with other schools and other institutions being run by the Church of North India Patna Dioceses. The school, in question, is being run through the Diocesan Education Society having its head office at Christ Church Compound, Bhagalpur. The aforesaid school was running in the premises owned by Manoj Kumar Sharma and others and was leased in favour of the Dioceses Church of North India. The informant was appointed Principal of the said school and he continued in the office till the date of his superannuation. On 17.9.2004, the petitioner no.1 wrote to the informant that he has retired with immediate effect and he should come to the office for settlement of his dues. 8. It is further contended that on 7.10.2004 the petitioner no.1 appointed Mr. George R. George (petitioner no.2) as the principal of the said school with immediate effect and he was directed to take charge of the school. In place of handing over charge, the informant filed Title Suit No.241 of 2004 and started claiming his title over the said school. 9. Learned counsel for the petitioners further contended that the informant filed a complaint case with respect to the incident alleged in the first information report of the present case in the court of the Chief Judicial Magistrate, Begusarai vide Complaint Case No.1620C of 2004. The allegations made in the complaint are verbatim the same as alleged in the present first information report. 10. It is further contended that the plaint of the complaint which has been brought on record would show that the same was drafted on 4.10.2004 and was filed in the court on 5.10.2004. The allegations made in the complaint are verbatim the same as alleged in the present first information report. 10. It is further contended that the plaint of the complaint which has been brought on record would show that the same was drafted on 4.10.2004 and was filed in the court on 5.10.2004. In the concluding portion of the aforesaid complaint, the informant has alleged that in respect of the occurrence which took place on 3.10.2004, he reported the matter to Begusarai (Town) Police Station but the police officer present there told him that since title suit is going on between the parties, he should file his case in the court. 11. Learned counsel submits that apparently the complaint was filed in the court with wrong averments. The police had already registered the first information report even before the complaint case was filed in the court. In the said complaint, by order dated 24.11.2004, the Magistrate concerned took cognizance of the offence and summoned the petitioners to face trial. The petitioners, being aggrieved by the order dated 24.11.2004, filed two separate applications, being Cr. Misc. No.19742 of 2006 and Cr. Misc. No.24708 of 2006, under section 482 of the Code of Criminal Procedure (for short “the Code”) for quashing the aforesaid order dated 24.11.2004. Both the applications filed by the petitioners were taken up by a Bench of this court and after hearing the parties, the summoning order passed in Complaint Case No.1620C of 2004, was quashed. 12. Learned counsel submits that the school, in question, is affiliated to the Indian Council for School Certificate Examinations (for short “ICSCE”), New Delhi. Since the informant raised dispute, the ICSCE convened a meeting on 22.11.2004, which was attended by the petitioner nos. 1 and 2 as well as the informant. In presence of the authorities of the ICSCE, New Delhi, after detailed discussions, an agreement was arrived at between the parties. The terms of agreement read as under:– “1. Only St. Paul’s School, Main Road, Begusarai is an affiliated institution in Begusarai at present. 2. All students of classes IX, X, XI and XII who had gone to St. Paul’s School, power House Road to return with immediate effect to St. Paul’s School, Main Road School. 3. Teachers who had left the affiliated school would be considered for re-induction as per management’s prerogative. 2. All students of classes IX, X, XI and XII who had gone to St. Paul’s School, power House Road to return with immediate effect to St. Paul’s School, Main Road School. 3. Teachers who had left the affiliated school would be considered for re-induction as per management’s prerogative. These teachers who were absent from the school are to write a letter of regret for their absence. 4. All the documents which were in the possession of Mr. Abishai are to be handed over to the new principal of the affiliated school. 5. Cases pending in the court are to be withdrawn on the basis of out of court settlement with immediate effect. 6. Money which was transferred from the account of the affiliated school to another account is to be returned to the affiliated school account. 7. Mr. Abishai has agreed to change the name of St. Paul’s School, Power House Road to St. Paul’s Model School, Power House Road, Begusarai. 8. The Bishop of Patna being the head of CNI diocese should have the possession of Churches in Begusarai. 9. Mr. Abishai has agreed to write a letter of apology to the Bishop to regret the events that lead to this unpleasantness.” 13. The settlement agreement was signed by all the persons including the informant of the present case. However, he resiled from the settlement arrived at between the parties in presence of the authorities of the ICSCE. He failed to fulfill his part and withdraw the cases filed against the petitioners. It has further been contended that the informant has acted illegally by lodging the first information report as well as the complaint for the same cause of action stating that the police has refused to lodge it as there was a title suit pending between the parties. 14. On the other hand learned counsel for the State submits that the allegations made in the first information report do constitute a cognizable offence. The police investigated the case and on conclusion of investigation submitted their report in the court finding the allegations to be true. He, thus, submits that plausible defence of the accused cannot be looked into at this stage. The accused may prove their innocence in course of trial. 15. I have heard the parties at length and perused the admitted documents brought on record. He, thus, submits that plausible defence of the accused cannot be looked into at this stage. The accused may prove their innocence in course of trial. 15. I have heard the parties at length and perused the admitted documents brought on record. Apparently, the allegations made in Complaint Case No.1620C of 2004 are the same as alleged in the first information report. Of course, some of the allegations made in the complaint, are in more aggravated form than in the first information report. The petitioners challenged their summoning order before this court in Cr.Misc. No.19742 of 2006 and Cr. Misc. No. 24708 of 2006, which were heard together and a Bench of this court, by order dated 20.12.2006, quashed the entire proceedings of the aforesaid complaint case. The operative portion of the order dated 20.12.2006 reads as under:– “As appears from annexure -2 the deed of lease dated 1.4.2002 the premises was leased out to Dioceses of Patna by Satya Sharma and others and the complainant signed on behalf of Dioceses as the principal of St. Paul’s School, Begusarai. It is mentioned in the lease to which the complainant was the party that he was signing the lease in his capacity as principal of the above noted school and further that the lease was meant to allow the running of the school in the premises which was let out to the institution. The lease was for a fixed period of five years which was mutually agreed by the both the parties. Annexure 3 indicates that the complainant was retired from service on account of having superannuated and the letter of retirement was issued to him on 17.9.2004. The petitioner George R. George was appointed a next principal thereafter and he was continuing. In paragraph 4 of the plaint in Title Suit no. 241/ 04 the statement of the complainant appears that the complainant in his personal capacity raised funds loans, etc and with the support of the teachers of the then St. Paul’s school got the tenancy of land with four rooms constructed over it and finally the school was started on 4.9.1997. It is not stated in the complaint as to from whom the tenancy was obtained and the purpose appears evidently clear. Paul’s school got the tenancy of land with four rooms constructed over it and finally the school was started on 4.9.1997. It is not stated in the complaint as to from whom the tenancy was obtained and the purpose appears evidently clear. The deed of lease dated 1.4.2007 indicates that it was a building consisting of 24 rooms and other structures and while taking the premises on lease the complainant was acting on behalf of the Dioceses of Patna having its Head Quarter at Bhagalpur. So the allegation that the complainant had obtained the lease in his personal capacity appears not borne out from the admitted documents. The other allegations in the petition of complaint that the accused persons came to the school premises and committed acts of violation and looted away properties also does not appear personally true inasmuch as had there been an occurrence of the nature and magnitude as is alleged, there could not have been any reason for the police not to take any action. After going through the petition of complaint and its contents what appears is that the allegation was patently absurd and inherently improbable slapped under greed which had developed in the mind of the complainant on account of the success of the school as a teaching institution in Begusarai. The complaint petition appears tinged with the colour of mala fide and with a view to spit at the accused persons. These are the reasons I find that the prosecution is not only unnecessary but also appears to me an abuse of the process of the court. In the result, the entire prosecution is quashed by quashing the summoning order dated 22.11.2004 passed by the learned Judicial Magistrate, Begusarai as also the complaint petition bearing no. 1620 (C) of 2004. The two petitions are allowed.” 16. Normally, first information lodged in the police station under Chapter XII of the Code has to be brought to its logical end in accordance with the procedure prescribed. However, power under Article 226 of the Constitution of India and section 482 of the Code has been conferred to this court to interdict such a proceeding in the event the institution/continuance of the criminal proceeding amounts to an abuse of the process of court. In R.P.Kapoor Vs. However, power under Article 226 of the Constitution of India and section 482 of the Code has been conferred to this court to interdict such a proceeding in the event the institution/continuance of the criminal proceeding amounts to an abuse of the process of court. In R.P.Kapoor Vs. State of Punjab since reported in A.I.R. 1960 SC 866 the parameters of exercise of the inherent power vested by section 561A of the repealed Code of Criminal Procedure, 1898, (corresponding to section 482 Cr.P.C., 1973) has been laid down in the following terms:– “(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction. (iii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.” 17. In case of State of Karnatak Vs. L. Muniswamy and others since reported in A.I.R. 1977 SC 1489, the Apex Court in paragraph 7 held as under:– “7. ………….. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.” 18. In case of State of Haryana & others Vs. Bhajan Lal and Others since reported in 1992 Supp (1) SCC 335 in paragraph 102 the Apex Court held as under:– “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 19. Taking into consideration the facts of the present case and the law laid down by the Apex Court, I am of the considered opinion that allowing the prosecution of the petitioners to continue would amount to a gross abuse of the process of court. On the same set of allegations this court has found the prosecution of the petitioners to be bad. Thus, the ends of justice require that the first information report, in question, and the consequent proceedings be quashed. 20. Accordingly, the first information report of Nagar P.S. Case No.302 of 2004 and the entire proceedings arising out of the said case, including the order taking cognizance of the offence, are hereby quashed. The writ petition stands allowed.