Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 215 (JHR)

Kailash Rajak v. State of Jharkhand

2015-02-10

RONGON MUKHOPADHYAY

body2015
Order Heard Mr. V.P. Singh, learned senior counsel for the petitioner and Mr. A.K. Amar, learned counsel for the opposite party no. 2. 2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Complaint Case No. 791 of 2006 including the order dated 15.03.2007 passed by the Chief Judicial Magistrate, Daltonganj whereby and whereunder cognizance has been taken for the offences punishable under Sections 384/386/420/504 of Indian Penal Code. 3. A complaint case was instituted by the opposite party no. 2 herein in which it was stated that the complainant had came in possession of 1 acre 37 decimals of land of Khata No. 29, Plot No. 185 situated at Datam Police Station by way of transfer by execution of deed of lease by its raiyat Rampati Devi. It has been stated that the complainant has applied for licence of mining lime stone and after fulfilling the entire process requested the petitioner to go to Datam where the land of the petitioner was situated and accordingly, the petitioner went with her to Datum and took the sample of lime and thereafter the same was sent to the Geological Laboratory, Hazaribagh. In the meantime, the petitioner allowed her to work upon the land from where the sample was taken and the licence was issued to her being licence no. 16 of 2006. It has been alleged that after grant of mining lease, the petitioner continued to make illegal demands of Rs. 15,000/- with a threat that if the demand is not fulfilled, her licence will be cancelled. It has further been alleged that the petitioner was restrained from carrying on mining activities on the ground that mining work is being done not upon the plot no. 185, but upon plot no. 158 and which according to him was a forest land. It has further been alleged that the Divisional Forest Officer, South Garhwa Forest Division, issued a letter dated 01.08.2006 by which she was informed that plot no. 185 and 158 are adjacent and the petitioner was restrained from carrying on mining activities in the said plot of land. It has also been alleged that a letter was issued by the petitioner to the complainant in which the licence for mining work of the complainant was cancelled and she was directed to deposit Rs. 185 and 158 are adjacent and the petitioner was restrained from carrying on mining activities in the said plot of land. It has also been alleged that a letter was issued by the petitioner to the complainant in which the licence for mining work of the complainant was cancelled and she was directed to deposit Rs. 9,520/- on the ground that she had illegally mined 200 sq. feet of land. After the complaint case was filed, inquiry was conducted under Section 202 and after examining the complainant under solemn affirmation and her witnesses vide order dated 15.03.2007 passed by the Chief Judicial Magistrate, Daltonganj, Palamau, cognizance was taken for the offences punishable under Sections 384/386/420/504 of Indian Penal Code. 4. It has been submitted by the learned senior counsel for the petitioner that this is a case of malicious prosecution, inasmuch as, the petitioner in the capacity of the District Mining Officer had issued licence to the complainant – opposite party no. 2, but subsequently it came to the knowledge of the petitioner that instead of carrying on mining activities on plot no. 185, he has doing mining activities on plot no. 158 which is a forest land. It has further been submitted that a show-cause notice had been issued to the complainant – opposite party no. 2 and after considering the show-cause, the licence of the opposite party no. 2 was cancelled. He has further submitted that the licence was cancelled on 09.09.2006 and as a counter blast, a complaint case was filed on 27.09.2006 making baseless allegations against the petitioners. He has further submitted that the petitioner is a government servant and no prior sanction was taken before instituting the case. He thus submits that the learned Chief Judicial Magistrate, Daltonganj did not apply his judicial mind while taking cognizance vide order dated 15.03.2007. 5. The learned counsel for the opposite party no. 2, on the other hand submitted that no proper inquiry as per the rules has been conducted before cancellation of the licence of opposite party no. 2. In this context, he has referred to the various correspondences made by the petitioner addressed to Circle Officer, Divisional Forest Officer, Garhwa, South Forest Division as well as the show-cause notice issued to the complainant. He in course of his argument submitted that in fact plot no. 2. In this context, he has referred to the various correspondences made by the petitioner addressed to Circle Officer, Divisional Forest Officer, Garhwa, South Forest Division as well as the show-cause notice issued to the complainant. He in course of his argument submitted that in fact plot no. 185 and 158 were adjacent to each other and in spite of repeated requests, no steps were taken for identifying and demarcating the said plots in order to clear the air about the confusion with respect to the mining activities carried on in the said plots. He further submits that the complaint petition clearly discloses that it is the petitioner who demanded illegal gratification and the various correspondences also indicate that he has acted in haste without following proper rules and procedure before cancelling the licence of opposite party no. 2. 6. After hearing the learned counsel for the parties and after going through the records, I find that in the complaint petition, the entire fact with respect to grant of licence and cancellation of licence has been dealt with by the complainant herself. However, in the complaint petition it has been stated that the petitioner had demanded illegal gratification of Rs. 15,000/- and on account of non-fulfillment of which, the licence was cancelled. It further appears that on 02.08.2006, show-cause notice was issued to the opposite party no. 2 and thereafter on 09.09.2006 the licence granted to the opposite party has been cancelled, whereas the complaint petition was instituted on 27.09.2006. It thus seems that the allegations mention that the whole crux of the matter is the cancellation of the licence granted to the opposite party no. 2 and the complainant being aggrieved by the said action on account of the petitioner being the District Mining Officer has resorted to filing of this complaint case making certain allegations against him. It thus seems that the complaint petition itself is a fall out of the cancellation of licence and has been resorted to by the opposite party no. 2 in order to create pressure upon the petitioner. In this context reference may be made to the case of “Anjani Kumar Vs. State of Bihar and anr.” reported in (2008) 5 SCC 248 . 2 in order to create pressure upon the petitioner. In this context reference may be made to the case of “Anjani Kumar Vs. State of Bihar and anr.” reported in (2008) 5 SCC 248 . The Hon'ble Supreme Court while considering the ambit of power under Section 197 of the Cr.P.C. for prosecuting the public servant has also -4-considered the report of the Law Commission with respect to Section 197 of the Cr.P.C. In the facts and circumstances of that case, category (7) as indicated in the case of “State of Haryana and others Vs. Ch. Bhajan Lal and others” reported in AIR 1992 SC 604 was applied. In the present case as has been discussed above, the allegations which have been made against the petitioner seems to have a direct nexus with the cancellation of the licences of the opposite party no. 2 and in such circumstances and if at all opposite party no. 2 is aggrieved by such cancellation, a proper remedy was available to her, but nowhere in the complaint or at the time of argument, it has been disclosed as to whether the opposite party no. 2 has preferred any application against such order of cancellation. It thus seems that the petitioner has been maliciously prosecuted against for the acts/actions done by him in cancelling the licence granted to the complainant. 7. In such circumstances, applying category (7) of the decision in the case of “State of Haryana and others Vs. Ch. Bhajan Lal and others” (supra), this application is fit to be allowed. Accordingly the same is allowed and the entire criminal proceeding in connection with Complaint Case No. 791 of 2006 including the order dated 15.03.2007 passed by the Chief Judicial Magistrate, Daltonganj, Palamau is quashed. Application allowed.