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2013 DIGILAW 937 (JHR)

Purushottam Ram Tibrewal v. State of Bihar

2013-08-05

JAYA ROY

body2013
JUDGMENT Jaya Roy - Heard the learned counsel for the petitioner the learned counsel for the Opposite party no.2 and learned counsel for the State. 2. The petitioner has filed this application for quashing the order dated 09.10.96 by which the cognizance has been taken against the petitioners under Sections 323/452/and 427 of the Indian Penal Code and also under Section 13(I)(IV),(X) and (XI) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 1989 and also the entire Criminal Proceeding of Special Case No. 17/96 at present pending before the First Additional Session Judge, cum-Special Judge, Godda. 3. Mr. Tewari, learned counsel for the petitioner, has submitted that the opposite party no. 2 has filed a complaint petition before the Court of Special Judge, Godda, which was registered as P.C.R. Case No. 09 of 1996. 4. The prosecution case as disclosed in the said complaint case is that on 20th August 1996 in the evening at about 5.00 P. M. the petitioners came to the house of the complainant along with two unknown persons and asked him to vacate the house as they have filed appeal against the order granting purcha to him and on refusal, the accused persons abused the complainant and also assaulted him and his wife with fists and slaps. It is further stated that the accused persons then tried to get the opposite party no.2 out from the house but some villagers pacified the matter but in the mean time the accused persons torn one sari of the wife of opposite party no.2 which is kept at the house, worth Rs.80/- only. The counsel of the petitioners has annexed the Complaint Petition as Annexure- 4 in this application. 5. Mr. Mahesh Tewari, the learned counsel for the petitioner has submitted that the petitioner no.1 namely Purushottam Ram Tibrewal died during the pendency of this application before the Hon'ble High Court. The counsel for the petitioner has further submitted that the aforesaid case was later on numbered as Special Case No.17 of 1996 and the learned First Additional Sessions Judge- cum Special Judge, Godda examined the opposite party no.2 on solemn affirmation on 21.08.96 itself and proceeded with an enquiry under section 202 of the code of Criminal procedure. The counsel for the petitioner has further submitted that the aforesaid case was later on numbered as Special Case No.17 of 1996 and the learned First Additional Sessions Judge- cum Special Judge, Godda examined the opposite party no.2 on solemn affirmation on 21.08.96 itself and proceeded with an enquiry under section 202 of the code of Criminal procedure. After enquiry, the learned Special Judge was pleased to take cognizance against the petitioners vide his order dated 9.10.96 under sections 323, 452 and 427 of the Indian Penal Code and also under Section 3(I),(IV),(X) and (XI) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 6. Mr. Mahesh Tiwari, the learned counsel of the petitioners, has submitted that in the year 1987 the opposite party no.2 along with several other associates made an attempt to grab the land of the petitioners situated in mouza Mahagama, due to which the petitioner no.1 being the head and Karta of the family, filed a case under the provision of S.P.T. Act before the Sub-Divisional Officer, Godda vide R.E.R. Case No. 29 of 1987-88 against the present opposite party no.2 and others, making a prayer therein intera-alia to evict them from the land mentioned in Schedule-A in which evidence etc. have already been closed from both side and a final judgment is awaited in the case. Inspite of the pendency of the aforesaid case, the circle officer, Mahagama in collusion with the opposite party no.2 got a purchi issued illegally and arbitrarily in his favour behind the back of the petitioner under the Bihar State Previledged Persons Homestead Tenancy Act vide proceeding no. 37/94-95. However, the petitioner no.1 against the order granting purcha to the opposite party no.2, filed a revision under the wrong instruction, before the Collector-cum-Deputy Commissioner, Godda who vide his order dated 13.2.97 directed the petitioner no.1 to file a revision before the competent court i.e. the Commissioner and subsequently, a revision application was filed before the Commissioner, Santhal Pargana vide R.M.R. No. 19 of 1997-98. The learned Commissioner, Santhal Pargana after a thorough enquiry of the matter, found the grant of purcha to the opposite party no.2 and others by the then Circle officer, Mahagama as illegal and arbitrary and accordingly he vide his letter no.285, dated 10.6.97 cancelled the order of the then Circle Officer, Mahagama, granting purcha to the opposite party no.2 and many others. Thus, there is a long standing enmity between the parties and the complainant due to this enmity has falsely implicated both the petitioners who are father and son, only to harass and humiliate them. 7. The counsel of the petitioner has submitted that admittedly the complainant has filed the instant complaint case before the Special Judge, Godda, but according to the Act, the Special Court is essentially a Court of Sessions and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. A complaint or a charge-sheet cannot straight-way be laid down before the Special Court under the Act. Neither in the Code nor in the Act there is any provision not even by implication, that the specified Court of Session can take cognizance of the offence under the Act as a Court of original jurisdiction without the case being committed to it by a Magistrate. To support of his contention Mr. Tiwari has cited a decision of the Hon'ble Apex Court in case of M.A.Kuttappan Vs. E. Krishnan Nayanar and another reported in 2004 Cri. L.J. 1770 wherein the Hon'ble Apex Court has held:- “The Special Judge has no jurisdiction to entertain the complaint directly and to issue process after taking cognizance without the case being committed to it by a competent Magistrate. The question is no longer res intergra and, therefore, it must be held that the Special Judge in the instant case erred in entertaining a complaint filed before it alleging offence under the Act and in issuing process after taking cognizance without the case being committed to it for trial by a competent Magistrate. 8. In the aforesaid case the Hon'ble Apex Court has also observed:- “However, it will be open to the appellant, if so advised, to file a complaint before a competent Magistrate who shall consider the complaint on its merit and then proceed in accordance with law.” 9. Mr. Tiwari has contended that in view of the decision of the Hon'ble Apex Court and in view of the facts that the complaint petition filed before the Special Court Godda, as stated earlier, the entire Criminal proceeding is fit to be quashed. 10. Mr. Mr. Tiwari has contended that in view of the decision of the Hon'ble Apex Court and in view of the facts that the complaint petition filed before the Special Court Godda, as stated earlier, the entire Criminal proceeding is fit to be quashed. 10. Mr. Manoj Sah, the learned counsel for the complaint has submitted that when the learned Ist Additional Judge cum Special Judge, Godda realised its mistake that the learned special Judge has no jurisdiction to take cognizance, then the learned Special Judge, Godda transferred the case on 14.02.97 to the file of learned Chief Judicial Magistrate, Godda and thereafter, the learned C.J.M. Godda took cognizance afresh in this matter vide order dated 20.03.97 and thereafter the learned C.J.M. Godda transferred the case to the file of Special Judge, Godda. Therefore, the impugned order taking cognizance 09.10.1996 is no more effective and this application is fit to be dismissed. But he has not denied the fact that the complainant petition was filed before the Special Judge, Godda. 11. After hearing both the parties at length I find none of the parties has annexed the aforesaid order dated 20.03.1997 passed by the C.J.M. Godda, who took cognizance afresh in this matter and transferred to the case to the Special Judge, Godda, they have only submitted this fact. Therefore, this court cannot take notice of the said submissions of the parties without having the said order either annexed the same in this application or produced by any of the parties before this Court not even at the time of argument of the application. 12. Considering of the decision of the Hon'ble Supreme Court in case of M.A. Kuttappan -Vrs- E. Krishnan Nayanar and another, and as in the present case the complaint petition was filed before the Special Judge and admittedly the Special Judge took cognizance vide order dated 09.10.1996, which is absolutely illegal, the Special Judge is wholly erred in entertaining the complaint filed before it and in issuing process after taking cognizance without the case being committed to it for trial by a competent Magistrate, I quash the order taking cognizance dated 09.10.1996 passed in Special Case No. 17 of 1996 passed by the Session Judge, Godda and also quash the entire criminal proceeding against the petitioner no.2 as proceeded on the basis of the aforesaid complaint petition. As it is submitted that the petitioner no. As it is submitted that the petitioner no. 1 died during the pendency of the application and the opposite party no.2 has not contradicted this fact, the entire criminal proceeding against the petitioner no.1 namely Purushottam Ram Tibrewal stands quashed. 13. In the result this application is allowed, however, it will be open to the complaint/opposite party no.2, if so advised, to file a complaint before a competent Magistrate, who shall consider the complaint on its merit and then proceed according to the law without influenced by order passed by the Special Judge or by this Court. 14. The office is directed to send this order immediately to the Court concerned through fax as the case is of 1997.