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2018 DIGILAW 405 (JHR)

Birendra Singh Jaisawal v. State of Jharkhand

2018-02-16

B.B.MANGALMURTI

body2018
JUDGMENT : Instant application has been filed for quashing the Order dated 15.07.2008 passed by Sessions Judge, East Singhbhum in Cr. Revision No. 70 of 2008 by which the revision was dismissed upholding the order dated 18.03.2008 by which order taking cognizance was passed by the then Judicial Magistrate, 1st Class in C 1 Case No.126 of 2007. 2. The short fact of the case, is that informant was Life Member of U.P. Sangh, a registered society running a school in the name and style as “Moti Lal Nehru Public School” within Bistupur town, Jamshedpur. The society has its accounts in several banks with huge amount of deposit. Chandra Dutt Dwivedi, the then Secretary of Sangh and Sri Ram Govind Tripathy and others with a malafide intention to misappropriate the amount of the Sangh deposited in the bank, conspired with each other and formed a trust named Motilal Nehru Memorial Education and Charitable Trust without seeking the consent and knowledge of the life members. A deed was also executed on 06.11.2003 in the Registry office at Jamshedpur. When the matter came to the knowledge of the Life Members as well as Executive Committee, they called an emergent meeting on 13.11.2003 in which Chandra Dutt Dwivedi, Ram Govind Tripathy and others were suspended from the membership of the said U.P. Sangh. The further allegation is that accused persons had withdrawn a sum of Rs.37,41,000/- by different cheques for their personal use in the name of Motilal Nehru Teacher’s Training College and allied institution by way of executing a sale deed on a consideration of Rs.26,29,500/- on 03.12.2003 at Seraikella and a sum of Rs.13,58,500/- was also withdrawn by means of three bearer cheques from the Bank deposit of U.P. Singh. A Special meeting was convened on 28.12.2003 where it was decided that accused persons were rightly suspended from the U.P. Sangh for such illegal act and a committee was also set up to enquire into the affairs of the accused persons in purchasing the aforesaid land. The committee submitted its report holding accused persons guilty and responsible for the same. F.I.R. was also lodged for these irregularities committed by the accused persons. The Police after investigation submitted final report on 30.12.2006 stating it as mistake of fact. The committee submitted its report holding accused persons guilty and responsible for the same. F.I.R. was also lodged for these irregularities committed by the accused persons. The Police after investigation submitted final report on 30.12.2006 stating it as mistake of fact. On 20.01.2007, Informant filed a Protest-cum-Complaint petition before the Court of Chief Judicial Magistrate which was registered as C-1 Case No.126 of 2007, the same was transferred to the court of Sri Y.K. Singh, the then Judicial Magistrate, 1st Class, Jamshedpur who made an enquiry under Section 202 of the Code of Criminal Procedure and passed detailed order on 17.04.2007 and took cognizance of the offence and issued processes upon the accused petitioners. Accused persons filed criminal revision being Cr. Revision No. 193 of 2007 before the Sessions Judge who by order dated 20.09.2007 was pleased to set aside the order dated 17.04.2007 passed by Sri Y.K. Singh, the then Judicial Magistrate, 1st Class, Jamshedpur with a direction that Chief Judicial Magistrate would be required to take up the fresh matter and pass the order in accordance with law. The then Chief Judicial Magistrate again passed the order on 25.09.2007 and after discussing the evidence and statement recorded by the Investigating Officer in G.R. Case No.677 of 2004 in which Investigating Officer had submitted the final report as mistake of fact, the Chief Judicial Magistrate neither accepted the final report nor rejected it but sent the case record again to the court of Sri Y.K. Singh, Judicial Magistrate, 1st Class to proceed on protest-cum-complaint petition of informant. The court of Sri Y.K. Singh, Judicial Magistrate, 1st Class again recorded the solemn affirmation of complainant on 22.11.2007 and his witnesses on 02.01.2008 and passed an order on 18.03.2008 taking cognizance of the offence under Sections 468, 471/34 of the Indian Penal Code against the accused petitioners and issued the process for their appearance. 3. Aggrieved by the above order, petitioners again filed a revision being Cr. Revision No.70 of 2008 but the same was dismissed on 15.07.2008 on the ground that no legal requirement imposed upon the Magistrate for passing the order while issuing summon and as such the order does not suffer from any infirmity. 4. 3. Aggrieved by the above order, petitioners again filed a revision being Cr. Revision No.70 of 2008 but the same was dismissed on 15.07.2008 on the ground that no legal requirement imposed upon the Magistrate for passing the order while issuing summon and as such the order does not suffer from any infirmity. 4. Counsel for the petitioner submitted that order dated 18.03.2008 passed by Sri Y.K. Singh, Judicial Magistrate, 1st Class in C-1 Case No.126 of 2007 and also the order dated 15.07.2008 passed by Sessions Judge in Cr. Revision No.70 of 2008 are wholly illegal and without application of judicial mind. The protest-cum-complaint petition was dismissed and cognizance was set aside by the order passed in Cr. Revision No.193 of 2007. Thereafter, the court of Chief Judicial Magistrate has no jurisdiction to revise and reopen the same complaint petition which has deemed to have already been dismissed after accepting final report submitted by the Police. He further submitted that the court below cannot revive and reopen the old complaint. Counsel for the petitioner submitted that the final report submitted as mistake of fact was accepted by the court of Chief Judicial Magistrate so the protest-cum-complaint petition is deem to be dismissed and taking subsequent cognizance is bad. The lower court has erred in reviving the old complaint case by examining the complainant on solemn affirmation. He relied on decisions of Surendra Singh Versus State of Bihar reported in 2006 (3) East Cr C 211 (SC), Simrikhia Versus Dolley Mukherjee & Chhabi Mukherjee & Anr. reported in (1990) 2 SCC 437 and Adalat Prasad Versus Rooplal Jindal & Ors. reported in AIR 2004 SC 4674. 5. Learned counsel for the opposite party no. 2 submitted that the revisional court in its order at Paragraph 11 have amply discussed the matter and has held that no illegality can be taken to have been done by the learned Chief Judicial Magistrate in accordance with direction of this Court and had proceeded further in the matter. 5. Learned counsel for the opposite party no. 2 submitted that the revisional court in its order at Paragraph 11 have amply discussed the matter and has held that no illegality can be taken to have been done by the learned Chief Judicial Magistrate in accordance with direction of this Court and had proceeded further in the matter. The court further held that:- “However though expressly nothing as such is mentioned in the said order, but impliedly it can be reasonably gathered out of the same that since he decided to proceed further in the matter and then sent the case record to the court concerned to proceed on the basis of protest-cum-complaint petition in accordance with the provision of Chapter-XV of Cr.P.C., he did not find himself in agreement with the final report submitted by the police or considered it acceptable. This way no illegality can be taken to have been done and the learned C.J.M. in accordance with the direction of this court applied his judicial mind and proceeded further in the matter.” 6. Also heard learned A.P.P. for the State. 7. Considering the above pleadings of the parties, it appears that on earlier occasion Police submitted final form showing it as mistake of fact but in the meantime the protest petition was also filed by the informant which was registered as complaint case. The Chief Judicial Magistrate after perusing final report and case diary accepted it but registered the protest petition as complaint case and transferred this case to the court of Shri Y.K. Singh, Judicial Magistrate, 1st Class, Jamshedpur for taking solemn affirmation of the complainant, enquiry and for disposal in accordance with law. Against this order, accused-petitioner preferred Cr. Revision No.193 of 2007 before the Sessions Judge, East Singhbhum, Jamshedpur. The Sessions Court after considering the materials and the submissions and the case law cited therein set aside the impugned order directing the court of Chief Judicial Magistrate to take up the matter afresh and pass necessary order in accordance with law, as also in the light of the settled proposition of law laid down by the Hon’ble Courts. Thereafter, the matter was again taken up by the court of Shri Y.K. Singh, Judicial Magistrate, 1st Class, Jamshedpur who having found prima facie case under Sections 420, 468 and 471 of the Indian Penal Code ordered for issuance of summons against accused-petitioners. Thereafter, the matter was again taken up by the court of Shri Y.K. Singh, Judicial Magistrate, 1st Class, Jamshedpur who having found prima facie case under Sections 420, 468 and 471 of the Indian Penal Code ordered for issuance of summons against accused-petitioners. This order was again challenged before the court of Sessions Judge, East Singhbhum in Cr. Revision No.70 of 2008. The Sessions Judge after considering the case laws filed on behalf of petitioners have held that the court concerned however, though expressly nothing as such is mentioned in the said order, but it can reasonably be gathered out of the same that since he decided to proceed further in the matter and then sent the case record to the court concerned to proceed on the basis of protest-cum-complaint petition in accordance with the provision of Chapter-XV of Cr.P.C., he did not find himself in agreement with the final report submitted by the Police or considered it acceptable. This way no illegality can be taken to have been done and the learned C.J.M. in accordance with the direction of this court applied his judicial mind and proceeded further in the matter. The revisional court further held that now the position is that court concerned after holding enquiry has found prima facie case made out against the petitioners and ordered for issuance of summons against them for appearance and to face trial, this decision of learned Magistrate is based on his satisfaction over the materials collected during enquiry. Precisely, there is no illegality or impropriety in the order passed by the court below that warrants any interference at this stage. Resultantly, the revision application was dismissed which is under challenge herein. It further appears that the revisional court had set aside the earlier order of the court of Chief Judicial Magistrate as well as the court of Judicial Magistrate, 1st Class with certain directions which was considered afresh by both the courts and subsequently they proceeded in the matter after consideration of the materials available before them and ordered for issuance of summons. Therefore, the revisional court was satisfied that the court below had carried out the directions given in the earlier criminal revision. 8. Therefore, the revisional court was satisfied that the court below had carried out the directions given in the earlier criminal revision. 8. The court of Chief Judicial Magistrate in the changed circumstances without accepting or rejecting the final report, transferred the case record again to the court of Sri Y. K. Singh, the then Judicial Magistrate, 1st Class to proceed on protest-cum-complaint petition of informant. The Magisterial court after due application of mind and on consideration of the materials passed an order for issuance of summon upon the accused-petitioners. In this background, the impugned order of revisional court does not require any interference. 9. In the above circumstances, instant criminal miscellaneous petition is dismissed.