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2014 DIGILAW 377 (PAT)

Kamal Nayan Prasad Singh v. State of Bihar

2014-03-26

RAKESH KUMAR

body2014
ORDER Heard Sri Nawal Kishore Singh, learned counsel for the petitioner and Sri Shyam Bihari Singh, learned Addl. Public Prosecutor. 2. The sole petitioner, invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 24.09.2011 passed by the learned Chief Judicial Magistrate, Nawadah in Kashichak P.S. Case No.15 of 2010. G.R. No.432 of 2010. By the said order, the learned Magistrate agreeing with the police report has taken cognizance of offence under Sections 420, 467, 468, 471, 406, 120(B) of the Indian Penal Code. 3. Short fact of the case is that initially, the informant filed a complaint in the court of learned Chief Judicial Magistrate, Nawadah vide Complaint Case No. 28 of 2010 disclosing therein that he was Principal of Jawahar Lal Nehru Inter College, Chandinawa (hereinafter referred to as “J.L.N. College”) and was on leave. During his leave period, the petitioner was functioning as Incharge Principal of the College, Chandinawa, Kashichak, District-Nawadah. When the complainant took charge, he noticed that several illegalities were committed by the petitioner. It was alleged that the petitioner unauthorisedly opened different bank accounts and transacted more than Rs.13 Lakhs in one of the newly opened account. On several allegations, a complaint was filed, which was referred to the police under Section 156(3) of the Code of Criminal Procedure for its registration and investigation and thereafter, an F.I.R. vide Kashichak P.S. Case No. 15 of 2010 was registered. During investigation, the accusation was found true and, as such, the police submitted chargesheet. After submission of chargesheet, the learned Chief Judicial Magistrate, Nawadah took cognizance of offence by the impugned order i.e. order dated 24.09.2011, which has been assailed by the petitioner in the present proceeding. 4. Learned counsel for the petitioner, at the very outset, has argued that the order of cognizance is liable to be set aside on the ground that initiation of the case was malicious and mala fide. He firstly submits that prior to lodging of the present F.I.R., one another complaint was filed by one of the members of the Managing Committee against the informant of the present case. The said case was numbered as Kashicak P.S. Case No.33 of 2009 registered for the offence under Sections 409, 467, 468, 471 and 420 of the Indian Penal Code. The said case was numbered as Kashicak P.S. Case No.33 of 2009 registered for the offence under Sections 409, 467, 468, 471 and 420 of the Indian Penal Code. The said case was also initiated on the basis of complaint filed by one Ramdeo Singh. He submits that in the said complaint, the petitioner was named as one of the witnesses. Learned counsel for the petitioner has further taken this Court to Annexure-2 i.e. purported to be a communication made by the Accountant of the college in question to the Incharge Principal, J.L.N. Inter College, Chandinawa. He has further referred to Annexure-4 i.e. purported to be an office order of J.L.N. Inter College, Chandinawa and Annexure-5 ( a photo copy of letter sent to the Director , Bihar School Examination Board, Patna) , which was sent by the District Education Officer, Nawadah. Firstly, it was submitted that the Accountant had given clarification to the Incharge Principal of the college in question vide Annexure-2 to the petition and submits that on perusal of this report, there is no case of misappropriation. In respect of Annexure-4, it has been argued that the Managing Committee of the said college had already dismissed the informant prior to lodging of the present case from the college in question. In respect of Annexure-5 to the petition, it has been highlighted that the District Education Officer had noticed that in the college in question, the dispute in between two groups is continuing and there is no valid Managing Committee. Learned counsel for the petitioner, highlighting the aforesaid documents, has argued that the prosecution of the petitioner is patently malicious and liable to be set aside. He has relied on an order passed by a Bench of this Court on 19.06.2013 in Cr.Misc.No.26709 of 2009. It has been submitted that this Court has quashed the entire proceeding in view of the fact that the dispute was relating to accountancy. Learned counsel for the petitioner in similar manner has relied on a case, reported in 2013 (4) PLJR 828 ; Naresh Kumar Yadav Vs. The State of Bihar & Anr. He has specifically referred to paragraph-7 of the said order, which is quoted herein below: “7. Learned counsel for the petitioner in similar manner has relied on a case, reported in 2013 (4) PLJR 828 ; Naresh Kumar Yadav Vs. The State of Bihar & Anr. He has specifically referred to paragraph-7 of the said order, which is quoted herein below: “7. Having considered the rival contention of the parties, as it appears from the FIR where allegation has been made that after 31st August, 2008 entries have not been made in the accounts book which is violative of provisions of Bihar Finance Rules as on everyday it is required to maintain proper entry of credit and debit in the account book, so much so that the petitioner has wrongly given the amount of farmers. If all the facts mentioned in the F.I.R. are taken to be true, this Court is of the view it is primarily dereliction of duty as allegation has been made of negligence of duty, having no control over the subordinates, in maintaining book of account, does not show mens rea of committing criminal offence. Merely not maintaining the accounts by subordinates without any oblique motive will not constitute any criminal offence against the petitioner who was heading the establishment. Every negligence of duty cannot constitute criminal offence unless the same is culpable in nature. It also appears that Rs.500/- was given to each four persons, as per the policy of the State, cannot constitute an offence. This Court is of the view if the facts mentioned in the FIR vis-à-vis letter issued by the Principal Secretary construed properly, primarily it appears this case has been filed in hot haste without examining the matter in depth and straightway FIR has been lodged against the petitioner. In this view of the matter, the order dated 21st November, 2011 is quashed and the petitioner is discharged from the case and this petition is allowed.” 5. Learned counsel for the petitioner has further placed heavily reliance on 2010 (4) PLJR 36(SC); Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. Particularly, he has referred to paragraph 22 (7) of the said Judgment, which is quoted herein below: “22. ---- ---- (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” 6. ---- ---- (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” 6. On the aforesaid ground, it has been reiterated that keeping in view the fact that initiation of prosecution was patently malicious, same is liable to be set aside. It has also been submitted that in a proceeding under Section 482 of the Code of Criminal Procedure, this Court is required to examine those documents and pass appropriate order for just decision in the matter. 7. Sri Shyam Bihari Singh, learned Addl. Public Prosecutor has opposed the prayer of the petitioner. 8. Besides hearing learned counsel for the petitioner as well as learned Addl. Public Prosecutor, I have also perused the materials available on record. So far as allegation part is concerned, the F.I.R. in the present case categorically discloses serious accusation against the petitioner, which was thoroughly investigated by the police and, thereafter, chargesheet was submitted. On perusal of the impugned order i.e. the order of cognizance, the Court is satisfied that there is no apparent error warranting interference by this Court. So far the plea taken by learned counsel for the petitioner that the present case was maliciously lodged since earlier a case was registered against the informant of the case, in which the petitioner was one of the witnesses, is concerned, the Court is of the opinion that if during investigation, the accusation is found true, mala fide losses its significance. In a case, where prima facie criminal offence is made out, the allegation of mala fide has got no such relevance. Moreover, such things are required to be examined at the appropriate stage. So far as letter of so called Accountant ( i.e. Annexure-2), which was addressed to the Incharge Principal of the college in question, is concerned, in normal course such documents are not required to be looked into unless those documents are properly proved. Moreover, said letter makes its clear that the Accountant had given some clarification to the Incharge Principal. Similarly, Annexure-4 to the petition may not be taken note by this Court. So far Annexure-5 to the petition is concerned, it does not speak about the accusation in the present case. Moreover, said letter makes its clear that the Accountant had given some clarification to the Incharge Principal. Similarly, Annexure-4 to the petition may not be taken note by this Court. So far Annexure-5 to the petition is concerned, it does not speak about the accusation in the present case. The said communication was issued in the month of July, 2009. Moreover, this document is not required to be looked into by this Court at this juncture. So far as order dated 19.06.2013 passed in Cr. Misc. No.26709 of 2009 is concerned, in the said case, the proceeding was initiated on the basis of complaint and the proceeding in Complaint Case was set aside. In the present case, the complaint was referred to the police and, thereafter, F.I.R. was registered and accusation was thoroughly investigated by the Investigating Agency and, thereafter, chargesheet was submitted. So far as Naresh Kumar Yadav’s case (supra) is concerned, in that case, order was passed against rejection of discharge petition and not at the stage of cognizance. It is made clear that at the time of cognizance, the learned Magistrate was required to examine only those materials, which were placed by the Investigating Agency and, as such, he has committed no error. Regarding Preeti Gupta’s case (supra), the Court is of the opinion that there is no dispute regarding power of the High Court under Section 482 of the Code of Criminal Procedure in interfering with a criminal case. In Bhajan Lal’s case ( AIR 1992 SC 604 ), in paragraph-108 of the said Judgment, certain circumstances were shown justifying interference. However, a note of caution was made by the Hon’ble Supreme Court in the next paragraph i.e. paragraph-109 of the said Judgment, which is quoted herein below: “109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” 9. Meaning thereby, a note of caution was made that such power is to be exercised sparingly and in the rarest of rare cases. The Hon’ble Supreme Court long back in 1995(3) Cr.L.J.2935; Ganesh Narayan Hegde Vs. S. Bangarappa & Ors, in paragraph 18 of the said Judgment, has admonished the superior courts from interfering at the initial stage of the criminal case. It would be appropriate to quote paragraph-18 of the said Judgment, which is as follows: “18. With respect to the contention of the learned counsel for the respondents that after a period of twelve years, the matter should not be allowed to be proceeded with we must say that the complainant is certainly not responsible for this delay. The learned counsel did not even make such a suggestion. Moreover, this contention does not appear to have been raised before the High Court. (The Judgment of the High Court is dated 16.06.92) We do not know who is responsible for this delay. As observed by Krishna Iyer, J. in In Re.: The Special Courts Bill. 1978, (1979) 1 SCC 380 at page 442: ( AIR 1979 SC 478 at p. 523); “It is common knowledge that currently in our country criminal Courts excel in slow-motion. The procedure is dilatory, the dockets are heavy, even the service of process is delayed and still more exasperating, there are appeals upon appeals and revisions and supervisory jurisdiction, baffling and baulking speedy termination of prosecutions…….” . The slow-motion becomes much slow-motion when politically powerful or rich and influential persons figure as accused. F.I.Rs are quashed. Charges are quashed. Interlocutory orders are interfered with. At every step, there will be revisions and applications for quashing and writ petitions. In short, no progress is ever allowed to be made. And if ever the case reaches the stage of trial after all these interruptions, the time would have taken its own toll: the witnesses are won over; evidence disappears; the prosecution loses interest- the result is an all too familiar one. We are sad to say that repeated admonitions of this Court have not deterred superior Courts from interfering at initial or interlocutory stages of criminal cases. Such interference should be only in exceptional cases where the interests of justice demand it; it cannot be a matter of course. In the circumstances, we cannot accede to the said contention.” 10. We are sad to say that repeated admonitions of this Court have not deterred superior Courts from interfering at initial or interlocutory stages of criminal cases. Such interference should be only in exceptional cases where the interests of justice demand it; it cannot be a matter of course. In the circumstances, we cannot accede to the said contention.” 10. In the aforesaid facts and circumstances, the Court is of the opinion that it is not a fit case for interference nor it can be put into the category of exceptional case warranting exercise of power under Section 482 of the Code of Criminal Procedure. Accordingly, the petition stands dismissed. 11. While dismissing the present petition, it is desirable to direct the court below to proceed with the case expeditiously, so that the case may come to its logical end without unnecessary delay. 12. Let a copy of this order be communicated to the court below forthwith.