Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 531 (JHR)

Bir Pratap Singh v. State of Jharkhand

2014-04-23

R.R.PRASAD

body2014
Judgment Heard the parties. 2. This application is directed against the order dated 8.5.2013 passed by the Chief Judicial Magistrate, Bokaro in B.S. City P.S. Case No. 168 of 2011 whereby and whereunder, prayer made by the petitioner for discharge was rejected. 3. It is the case of the prosecution that the petitioner was the erstwhile Secretary of Bharat Ekta Grih Nirman Sahyog Samiti Limited, Bandhgora, Bokaro. On 1.12.2010 one Sugriv Pandey was elected as Secretary by the General Body. Thereupon the petitioner was asked by the informant to hand over the charge to newly elected Secretary of the said Society but the petitioner did not care to obey the order. Thereafter, again the petitioner was asked to hand over the charge to newly elected Secretary. In spite of repeated request, when the petitioner failed to hand over the charge, a case was lodged as B.S. City P.S. Case No. 168 of 2011 under Sections 406, 409, 420 of Indian Penal Code and under Section 45A (3) of the Bihar Co-operative Societies Act, 1935. 4. Upon submission of charge-sheet, cognizance of the offences as aforesaid was taken. In course of time, an application for discharge was filed which was rejected vide its order dated 8.5.2013 which is under challenge. 5. Learned counsel appearing for the petitioner submits that simply on account of the fact that the petitioner did not handover the charge to the Secretary of the Cooperative Society, the petitioner not only is being prosecuted under Section 45A(3) of the Bihar Co-operative Societies Act, but also for the offences punishable under Sections 406, 409, 420 of Indian Penal Code, though the petitioner had handed over the charge to the President of the Society and, thereby, no prosecution would lie even under Section 45A(3) of the Bihar Co-operative Societies Act, and the fact that the petitioner had handed over the charge to the President, would get reflected from the statement made by not other than the Secretary, who has stated in his statement made under Section 161 Cr.P.C., before the police, that in stead of handing over the charge to him, the petitioner has handed over the charge to the President and in that event, the court should have discharged the petitioner from the case but by not doing so, the court has committed illegality and thereby the impugned order is fit to be set aside. 6. 6. As against this, learned counsel for the opposite party no. 2 submits that after the new Secretary of the Society was elected, the petitioner was asked not once but repeatedly to hand over charge to the newly elected Secretary but the petitioner never cared to hand over the charge to him, rather as per the case of the petitioner, the petitioner had handed over the charge not to the Secretary but to the President of the Society but that will not save the petitioner from being prosecuted for the offence under Section 45A(3) of the Bihar Co-operative Societies Act. 7. Thus, from the submission advanced on behalf of the parties, it does appear that the petitioner is being prosecuted only on account of the fact that he, being erstwhile Secretary of the Society, did not handover the charge to the newly elected Secretary of the Cooperative Society, though according to the petitioner, the petitioner had handed over the charge to the President of the Society. 8. In this context, one needs to take notice of the provision, as contained in Section 45A(3) of the Bihar Co-operative Societies Act, to find out as to whether the offence under Section 45A(3) of the Bihar Co-operative Societies Act is made out or not. Section 45A(3) of the Bihar Co-operative Societies Act reads as follows:- 45A. (1) On election of new secretary or on supersession of co-operative society or on expiry of the term of the office bearers of a co-operative society, the outgoing secretary or the person holding charge of the office of the co-operative society shall hand over charge of his office and a papers and properties in his possession as secretary or incharge of the said society to the new secretary or the officer directed by the prescribed authority to take charge of the affairs of the said society. (2) If the outgoing secretary of a co-operative society or the person holding charge of the office of secretary fails or refuses to hand over charge of his office as required under sub-section (1) above, the prescribed authority or any officer empowered by it in this behalf, may by an order in writing direct the out going Secretary or the person holding charge of the office of Secretary to hand over immediately the charge of his office and all papers and properties in his possession as such secretary to the new secretary in case of fresh election, and in case of supersession or on expiry of the term of office to the officer appointed to manage the affairs of the society. (3) If the person to whom a direction has been issued under sub-section (2) fails to comply with the said direction he shall be punishable with the imprisonment which may extend upto the period of six months or affine of Rs. 500, or with both. xxx xxx xxx xxx” 9. From reading of the aforesaid provision, it does appear that outgoing secretary is required to hand over the charge to the newly elected secretary and if direction of handing over charge is not obeyed, one is liable to be punished in terms of the provision as contained in Section 45A(3) of the Bihar Co-operative Societies Act. 10. Admittedly, the petitioner had never handed over the charge to the newly elected secretary and thereby offence under 45A(3) of the Bihar Co-operative Societies Act gets attracted. So far offences under Sections 406, 409 and 420 of Indian Penal Code is concerned, no accusation whatsoever is there for attracting those offences. 11. Learned counsel for the opposite party no. 2 also could not place any material at the time of hearing of this case to establish that the offences under Sections 406, 409 and 420 of Indian Penal Code get attracted. 12. Thus, nothing is there against the petitioner for framing charge either under Sections 406, 409 or 420 of Indian Penal Code. 13. Accordingly, that part of the order dated 8.5.2013, whereby the court does find that sufficient materials are there for framing charge under Sections 406, 409 or 420 of Indian Penal Code, is hereby set aside. 14. 12. Thus, nothing is there against the petitioner for framing charge either under Sections 406, 409 or 420 of Indian Penal Code. 13. Accordingly, that part of the order dated 8.5.2013, whereby the court does find that sufficient materials are there for framing charge under Sections 406, 409 or 420 of Indian Penal Code, is hereby set aside. 14. However, I have already stated earlier that sufficient materials are there for framing charge under Section 45A (3) of the Bihar Co-operative Societies Act. 15. Hence, I do not find any illegality with the order impugned so far offence under Section 45A (3) of the Bihar Co-operative Societies Act is concerned. 16. Accordingly, this application stands partly allowed. Application partly allowed.