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2016 DIGILAW 512 (JHR)

Sushil Kumar Jha v. State of Jharkhand

2016-03-28

RONGON MUKHOPADHYAY

body2016
ORDER : 1. In this application, the petitioners have prayed for quashing the entire criminal proceedings in connection with C.P. Case No. 248 of 2008 including the order dated 20.05.2009 by virtue of which cognizance has been taken for the offences punishable under Sections 420/34 of the Indian Penal Code. 2. The prosecution story as would appear from the complaint petition instituted by the opposite party no. 2 is to the effect that a decree was passed in favour of the complainant in Title Suit No. 4 of 1986 against which the defendant had preferred an appeal being Title Appeal No. 58 of 1989 which was, however, dismissed. 3. An execution case was instituted being Execution Case No. 1 of 2006 in which the learned Munsif, Bermo at Tenughat had directed for delivery of possession in favour of the complainant. It has been alleged that at the time of execution of the decree the accused persons had given an oral assurance that within a period of ten days the complainant would be given delivery of possession. Subsequently, however, the complainant received a letter dated 07.07.2008 issued by the accused no. 2 in which the allotment made in favour of the complainant was cancelled and, therefore, since according to the complainant the same was deliberately and willfully done by the accused persons with a criminal intent the complaint case was instituted. 4. Upon enquiry by examining the complainant on solemn affirmation as well as his witnesses and after perusal of the documents cognizance was taken for the offences punishable under Sections 420/34 of the Indian Penal Code. 5. Heard Mr. Delip Jerath, learned counsel appearing for the petitioners and Mr. Durga Charan Mishra, learned counsel appearing for the opposite party no. 2. 6. It has been submitted by the learned counsel appearing for the petitioners that in the suit instituted by the complainant Damodar Valley Corporation was impleaded as proforma defendant and the decree could not have been executed against the proforma defendant. Learned counsel submits that since the opposite party no. 2 was running a vegetable shop on allotment and since his father and brother were already allotted shop at C.T.P.S. the allotment made in favour of the opposite party no. 2 was contrary to the rules for allotment and in such circumstance the said allotment order was rightly cancelled. It has been submitted that if the opposite party no. 2 was running a vegetable shop on allotment and since his father and brother were already allotted shop at C.T.P.S. the allotment made in favour of the opposite party no. 2 was contrary to the rules for allotment and in such circumstance the said allotment order was rightly cancelled. It has been submitted that if the opposite party no. 2 indeed has any grievance against the cancellation of his allotment remedies were available to him but by filing a complaint petition, the opposite party no. 2 wants to create pressure upon the petitioners to withdraw the cancellation order and such act on the part of the opposite party no. 2 is an act tainted with malice. Learned counsel also submits that the petitioners have acted in discharge of their official duty and, therefore, in absence of any sanction as envisaged under Section 197 of the Code of Criminal Procedure, the petitioners cannot be prosecuted. 7. Countering the arguments advanced by the learned counsel for the petitioners, Mr. Durga Charan Mishra, learned counsel appearing for the opposite party no. 2 has submitted that a suit was preferred by the opposite party no. 2 in which Damodar Valley Corporation was arrayed as a defendant and the suit was ultimately decreed and the judgment was also affirmed up to the Appellate Court. It has been submitted that intention of the petitioners would be evident from the fact that at their instance delivery of possession and execution of the decree was delayed for ten days and in the meantime the letter of cancellation of the allotment was issued making the entire efforts of the opposite party no. 2 in getting the delivery of possession futile. Learned counsel further submits that the entire acts of the petitioners make them liable to be prosecuted for committing an offence under Section 420 of the Indian Penal Code. Furthering his argument, learned counsel for the opposite party no. 2 has submitted that the order taking cognizance also reveals due application of judicial mind on the part of the learned Magistrate and there being a prima facie case made out against the petitioners, the present application is liable to be dismissed. 8. From the complaint petition, it appears that a suit was instituted by the complainant against the defendants in which Damodar Valley Corporation was impleaded as a proforma defendant. 8. From the complaint petition, it appears that a suit was instituted by the complainant against the defendants in which Damodar Valley Corporation was impleaded as a proforma defendant. The entire dispute which led to institution of the suit was with respect to allotment of the land which was as per the case of the plaintiff was given on lease by Damodar Valley Corporation in the year 1972 and in which the complainant/ plaintiff had constructed a shop. The suit was ultimately decided in favour of the complainant and the private defendant had also preferred an appeal being Title Appeal No. 58 of 1989 which was dismissed by the learned 1st Additional District Judge, Bermo at Tenughat vide judgment dated 31.01.2006. 9. The main grievance of the complainant as it seems is with respect to the cancellation of the allotment order by the authorities of Damodar Valley Corporation which resulted in non-execution of the decree. The petitioners have brought on record the minutes of meeting as well as the letter by which the cancellation of land was made. These documents have not been disputed by the opposite party no. 2 and they being unimpeachable in character can be relied upon while deciding this application. In the meeting of the Land and Shop Allotment Committee dated 07.07.2008 it was decided to withdraw/cancel permission granted to the opposite party no. 2 for allotment if any in favour of the opposite party no. 2 since his father and brother were already allotted plots for shop. The decision held in the meeting culminated in the issuance of letter dated 07.07.2008 by the petitioner no. 2 by which the allotment order was withdrawn/cancelled with immediate effect. 10. The petitioner no. 1 had taken part in the meeting whereas the petitioner no. 2 being Estate Officer had issued the letter of cancellation. The entire acts of the petitioners clearly suggests that they had acted in discharge of their official duty. Even otherwise cancellation of the allotment order by Damodar Valley Corporation would not entail fastening of criminal liability upon the petitioners. If at all the opposite party no. 2 was aggrieved by the order of cancellation he could have brought the same to the notice of the higher authorities instead of filing a criminal complaint making the officials of Damodar Valley Corporation as accused although they had discharged their duties in their official capacity. If at all the opposite party no. 2 was aggrieved by the order of cancellation he could have brought the same to the notice of the higher authorities instead of filing a criminal complaint making the officials of Damodar Valley Corporation as accused although they had discharged their duties in their official capacity. The scenario as indicated above, would suggest that the entire criminal proceedings is a vexatious litigation foisted upon the petitioners and continuation of such proceedings would result in the abuse of the process of law. 11. Therefore, as cumulative result of the discussions made hereinabove, this application is allowed and the entire criminal proceedings in connection with C.P. Case No. 248 of 2008 including the order dated 20.05.2009 passed by the learned Judicial Magistrate, Bermo at Tenughat is, hereby, quashed and set aside. Application allowed.