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2015 DIGILAW 974 (JHR)

Mahabir Tiwari v. State of Jharkhand

2015-08-14

D.N.UPADHYAY

body2015
ORDER This Cr.M.P. has been filed for quashing the order dated 09.05.2006 passed by learned Chief Judicial Magistrate, Hazaribag in connection with G.R. No.2919 of 2002 arising out of Hazaribag Sadar P.S. Case No.499 of 2002 whereby cognizance for the offences punishable under Section 147, 148, 149, 341, 323 & 379 of the Indian Penal Code has been taken against the petitioners on the basis of protest petition filed by opposite party no.2 and further to quash the entire criminal prosecution arising out of said G.R. Case No. 2919 of 2002, T.R. No. 1358 of 2006, then pending in the Court of Sri Manoj Chandra Jha, learned Judicial Magistrate, 1st Class, Hazaribag. 2. During pendency of present Cr.M.P., I.A. No.530 of 2014 has been filed on 23.01.2014 with a prayer to allow the petitioners to carry out amendment in the original application. It is contended in the interlocutory application that due to nonappearance of the petitioners in the Court below, they had been declared absconder and proceeding u/s 299 Cr.P.C. was initiated vide order dated 7th May, 2013 and permanent warrant of arrest had been directed to be issued. Since processes had been issued and the petitioners had been declared absconder and after compliance of provisions contained under Section 299 Cr.P.C the record has been deposited in the record room, the order dated 7th May, 2013 passed in aforesaid G.R. Case No.2919 of 2002 may also need to be quashed. 3. Prosecution case, in brief, is that the informant was appointed as registered Power of attorney on behalf of Bokaro and Ramgarh Limited, a Public Limited Company, to look after and dispose of holding no.100/2015, plot no.499 Pargana Champa, P.S. & District Hazaribag on behalf of principal owner. It is disclosed that the complainant could learn that receiver has been appointed by learned Sub-Divisional Magistrate, Hazaribag against the said plot in case no.07 of 1998 under Section 146(1) Cr.P.C. Against appointment of receiver opposite party no.2 (complainant) preferred Cr. Misc. Petition No.5106 of 2001(R) before this Hon'ble Court in which Ram Singhasan Singh, accused no.7 was made a party and after granting hearing to the parties, Hon'ble Court has been pleased to direct the parties to maintain status quo by order dated 14.03.2002. It is alleged that accused nos. 3 and 7 hiring antisocial elements namely accused nos.1, 2, 4, 5 & 6 forcibly constructed boundary on the aforesaid land. It is alleged that accused nos. 3 and 7 hiring antisocial elements namely accused nos.1, 2, 4, 5 & 6 forcibly constructed boundary on the aforesaid land. When the complainant demanded documents against aforesaid illegal act committed by the accused persons, they became furious and for that information was lodged with the Superintendent of Police, Hazaribag. On 01.08.2002 at about 11.30 a.m. when the informant along with his associate was going to the office of the Superintendent of Police, Hazaribag, the accused persons restrained them near the aforesaid plot and opened fire to do away their life. The bullet fired damaged the wind screen of the vehicle. It is alleged that all the accused persons surrounded the complainant and his associate and caused assault to them and also snatched away money from their possession after which instant complaint no.687 of 2002 was filed and the same was sent to the police station concerned under Section 156(3) Cr.P.C. and after that Hazaribag Sadar P.S. Case No. 499 of 2002 under Sections 147, 148, 149, 341, 379, 307, 323, 325 & 120B of the Indian Penal Code and Section 27 of the Arms Act was registered. 4. The police, after due investigation, submitted Final Form stating the occurrence untrue but a protest petition was filed. After perusing the materials collected in the case diary learned C.J.M. Passed a detailed order on 09.05.2006 and took cognizance against the petitioners under Sections 147, 148, 149, 341, 323 & 379 of the Indian Penal Code. 5. It was submitted that the facts mentioned in the complaint/protest petition as well as material collected during investigation, if fully taken at their face value, do not disclose any offence against the petitioners. Learned Chief Judicial Magistrate should not have considered the material available in the case diary because the Investigating Officer on the basis of said evidence collected in the case diary, did not find the occurrence true and submitted Final Form. The order of cognizance taken by learned Chief Judicial Magistrate is bad in law and same is liable to be quashed. Besides the merit of the case, it was pointed out that the parties have settled their dispute and on the basis of said settlement, the informant party who were accused in the counter case have been acquitted. The order of cognizance taken by learned Chief Judicial Magistrate is bad in law and same is liable to be quashed. Besides the merit of the case, it was pointed out that the parties have settled their dispute and on the basis of said settlement, the informant party who were accused in the counter case have been acquitted. In the aforesaid development allowing the criminal proceeding against the petitioners will be nothing but an abuse of the process of the Court. In this context, learned counsel has relied on para 61 of the judgment reported in (2012) 10 SCC 303 (Gian Singh Vrs. State of Punjab & Another). 6. With regard to interlocutory application, it was contended that after passing of order of cognizance, the petitioners did not receive any notice or summon. The court below proceeded ahead step by step by issuing summons, warrant of arrest and processes under Section 82 & 83 Cr.P.C. and finally declared the petitioners absconder, permanent warrant of arrest against them have been issued and after compliance of Section 299 Cr.P.C., the record has been deposited in the record room but aforesaid steps had been taken without having any service report and therefore, aforesaid orders by which processes against the petitioners had been issued are liable to be quashed. In that view of the matter, the amendment sought for vide I.A. No.530 of 2014 may be permitted to be carried out in the main petition filed by the petitioners. 7. On the other hand, learned counsel appearing for the opposite party has submitted that petitioners have preferred W.P. (Cr.) No.407 of 2004 for quashing the present First Information Report, when they did not get favourable order and said W.P. (Cr.) stood dismissed, on the same and similar ground, they have filed this Cr.M.P. for quashing the entire criminal prosecution and the order of cognizance dated 09.05.2006. It was submitted that learned Chief Judicial Magistrate has every right to go through the case diary if protest petition was filed by the informant challenging the veracity of the investigation done. It was submitted that learned Chief Judicial Magistrate has every right to go through the case diary if protest petition was filed by the informant challenging the veracity of the investigation done. It is not necessary to agree with the investigation done by the Investigating Officer and the court at the time of taking cognizance is empowered to look into the case diary under Clause(b) of Sub-Section I of Section 190 of the Cr.P.C. There is no illegality in the order dated 09.05.2006 by which cognizance has been taken. The learned Chief Judicial Magistrate had applied judicial mind by considering materials and evidence available on record and that is quite apparent from the order impugned. 8. With respect to interlocutory application it has been submitted that amendment in the present criminal miscellaneous petition for inducting certain new facts and also with a prayer to quash the same cannot be permitted. The order of cognizance was well within the knowledge of the petitioners since they have preferred present Cr.M.P. on 01.02.2007 i.e. within a year from the date of order of cognizance. No stay was granted in favour of the petitioners and therefore, their appearance in the court below for further progress in the trial was essential. They had evaded their appearance intentionally and therefore, the Court below had left with no option but to proceed further to secure their appearance and for that process, step by step had been taken. When the petitioners did not appear for a long time, they were declared absconder and permanent warrant of arrest against them were issued and the Court had rightly proceeded u/s 299 Cr.P.C. There is no merit in this Cr.M.P. as well as in I.A. No.530 of 2014 and same are liable to be rejected. 9. I have gone through the materials placed before me. It is evident that the petitioners could not succeed in getting favourable order in W.P. (Cr.) No.407 of 2004 which was filed for quashing the entire criminal prosecution arising out of Hazaribag Sadar P.S. Case No.499 of 2002. When they could not succeed, they have filed present Cr.M.P. under Section 482 Cr.P.C. for quashing the order of cognizance dated 09.05.2006. Not only that, now they have sought for quashing the orders by which processes against them have been issued and they have been declared absconder and permanent warrant of arrest against them have been issued. When they could not succeed, they have filed present Cr.M.P. under Section 482 Cr.P.C. for quashing the order of cognizance dated 09.05.2006. Not only that, now they have sought for quashing the orders by which processes against them have been issued and they have been declared absconder and permanent warrant of arrest against them have been issued. They have also sought for quashing the order by which proceeding u/s 299 Cr.P.C. was initiated and finally the record has been deposited in the record room. Thus, it is apparent from the very inception of the F.I.R. till deposit of the aforesaid case record in the record room they have been challenging each and every stage of the proceedings and trial. The steps taken by the petitioners are nothing but to frustrate the interest of the aggrieved/complainant. It is evident from the order dated 09.05.2006 passed by learned Chief Judicial Magistrate, Hazaribag that the Court has perused the F.I.R., Final Report and the materials collected in the case diary and after considering the evidence collected in the case diary, the learned Chief Judicial Magistrate has passed the order impugned by which cognizance has been taken. I have also gone through the copy of the Final Form submitted by the Investigating Officer and I do not find any reason assigned by the Investigating Officer for submitting Final Form stating the occurrence untrue. What was the ground and reason for coming to that conclusion, is not evident from the substance appearing in the said Final Form. The submission made by learned counsel that evidence collected in the case diary and the averment made in the complaint, if taken at their face value, do not make out any offence, has no leg to stand. 10. By referring the judgment in the case of Gian Singh (supra) it was submitted that the matter has been settled between the parties and therefore entire criminal prosecution, in the interest of justice, may be quashed. At this juncture, I would like to mention two points: (i) The informant was attorney holder to look after and manage property indicated in the power of attorney executed in his favour and he was not the absolute owner of the property concerned. At this juncture, I would like to mention two points: (i) The informant was attorney holder to look after and manage property indicated in the power of attorney executed in his favour and he was not the absolute owner of the property concerned. The allegation in the F.I.R. is that the accused persons forcibly got boundary constructed on the aforesaid property even during pendency of writ petition in which direction to maintain status quo was given. It is not indicated that Bokaro and Ramgarh Limited, a Public Limited Company had settled the dispute with the petitioners. (ii) The second point which I would like to bring on record is that inherent power conferred upon this Court under Section 482 Cr.P.C. should be invoked with care and caution keeping in mind the interest of justice. This inherent power should also be used to avoid miscarriage of justice and abuse of process of Court. Section 482 Cr.P.C. should also be used where no express provision on the matter is available in Code of Criminal Procedure. Needless to mention, law helps to law abiding person and discretionary power conferred upon the Court should be exercised judiciously and also with good conscience and equity. At the time of giving weightage of leniency, the conduct of the parties during pendency of proceeding must be taken note of. It was contended that the parties have compromised the case and good relation has been restored, therefore, the guidelines given by Hon'ble Apex Court in the case of Gian Singh (supra) may be adopted go give benefit to the petitioners. In this context, the conduct of the petitioners from the very inception of the case are required to be viewed. When the F.I.R. was lodged and investigation proceeded ahead, they filed petition for quashing the F.I.R. and entire criminal prosecution but they could not succeed. When the cognizance was taken, they have filed present Cr.M.P. for quashing the cognizance order and the entire criminal prosecution. Up to this stage, steps taken by the petitioners could be understandable but evading their appearance before the Court for further progress in the trial cannot be accepted. The petitioners had taken a plea that no notice or summon was served upon them after cognizance order was passed. Up to this stage, steps taken by the petitioners could be understandable but evading their appearance before the Court for further progress in the trial cannot be accepted. The petitioners had taken a plea that no notice or summon was served upon them after cognizance order was passed. I have already indicated that order of cognizance was passed on 09.05.2006 whereas this Cr.M.P. for quashing the said order was filed on 01.02.2007 which is indicative of fact that they had received knowledge of order dated 09.05.2006 by which cognizance against them had been taken. The very purpose of issuance of summon is to make the accused persons acquaint that their appearance in the case concerned is required. In the case at hand it could well be observed that the petitioners, instead of appearing before the Court after order of cognizance, had been evading their appearance for about 78 years. The pendency of the case was well within their knowledge but they did not choose to appear. In the circumstances, the Court has rightly taken further steps to secure the attendance of the petitioners. When they did not appear even after issuance of process under Sections 82 & 83 Cr.P.C., they have rightly been declared absconder and permanent warrant of arrest against them had rightly been issued. They cannot say that pendency of the case was not within their knowledge because they had been pursuing present Cr.M.P. for quashing the cognizance order and the criminal prosecution launched against them. The conduct of the petitioners clearly suggest that they have been intentionally flouting the Court's order since the very inception and they did not put their appearance before the trial court. In the circumstances stated above, I do not feel inclined to give weightage to the leniency in favour of the petitioners. All the offences are not compoundable, no compromise had taken place with the company who is having interest in the property, the lower court record has been deposited with the record room after compliance of procedure laid down u/s 299 Cr.P.C. and therefore, I am of the opinion that inherent power conferred upon this Court is not needed to be invoked in favour of the petitioners. 11. In view of the discussions made above, I do not find any merit in this Cr.M.P. and the same stands dismissed. 11. In view of the discussions made above, I do not find any merit in this Cr.M.P. and the same stands dismissed. In view of observations made above, I do not feel inclined to allow I.A. No.530 of 2014 which also stands dismissed.