Patna High Court - Orders
Rakesh Kumar & Ors. vs The State Of Bihar & Ors on 20 September, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.42932 of 2011
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1. Rakesh Kumar S/O Late Devendra Kumar, R/O Road No.-8-A, Mohalla-
Ashok Nagar, P.S.- Kankarbagh, Distt.-Patna
2. Rajesh Kumar S/O Late Devendra Kumar R/O Road No.-8-A, Mohalla-
Ashok Nagar, P.S.-Kankarbagh, Distt.-Patna
3. Raushan Kumar @ Raushan Kumar Sinha S/O Mahesh Kumar Sinha
@Mahesh Pd. Sinha, R/O Vill. -Yaduvanshinagar, Bajdula, Dighi West,
P.S.- Hajipur Sadar ( Town ), Distt.-Vaishali.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Bijay Kumar, Accountant and Officer Incharge of M/S- Patliputra
Tobacco Company, Dumri Kothi, P.S.- Pirbahore, Distt. Patna
3. Proprietor Of M/S/ Patliputra Tobacco Company M/S- Patliputra
Tobacco Company, Dumri Kothi, P.S- Pirbahore, Distt.-Patna.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. S. Narayan Pd. Sinha, Sr. Adv.
Mr. Jitendra Narayan Sinha, Adv.
Mr. Krishan Nandan Kumar, Adv.
For the Informant Mr. Deepak Kumar Sinha, Adv.
For the State : Mr. H.A. Khan, APP
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
2 20-09-2012The counsel for the petitioners, learned counsel for the O.P. No. 2 and learned counsel for the State.
2. In this case, petitioners are challenging the order dated 17.11.2011 passed in G.R. No. 878 of 2009 whereby and whereunder the court below has refused to discharge the petitioners on the basis of compromise entered in between the parties.
3. From the F.I.R. it appears that a complaint case has been filed by one Bijay Kumar Mishra, Accountant and Officer 2 Patna High Court Cr.Misc. No.42932 of 2011 (2) dt.20-09-2012 2/7 Incharge of M/S- Patliputra Tobacco Company against petitioners and other accused persons where the primarily allegation has been made that the accused persons are employee of Patliputra Tobacco Company, Patna.
4. It appears from the written complaint, petitioners and others were employees of the said Company and had misappropriated Rs. 01 crore and 18 lakhs in a well planned/ conspiracy where the allegation has been made against Rakesh Kumar being a master mind of all illegal transaction. It has been alleged that after misappropriation of huge amount of the said Company, the accused persons have invested the said amount like Brittania Biscuit and Cake, Tele-Communication, Bharti Airtel Ltd., Deccan Tea, Agrotoc, Kailash Oil, Wipro Consumer Care Ltd. and also they have purchased vehicles like Sumo, Indica, Centro and Tampoo. The incident took place in between 2007 to October, 2008. There was deficit of amount in the company for that the company had to take loan from Bank for the purpose of purchasing goods whereupon the company Management felt suspicion of financial irregularities thereafter, account was inspected by the complainant, Accountant, Bijay Kumar and C.A., Sri Subodh Kr. Singh detected misappropriation of crore of rupees. In paragraphs 5, 6 and 7 of the complaint petition it has 3 Patna High Court Cr.Misc. No.42932 of 2011 (2) dt.20-09-2012 3/7 been mentioned that how the said amount distributed amongst the accused persons. On the basis of written complaint a case was instituted as Complaint Case No. 1209(C)/2009 and later on the court below in exercise of power under Section 156 (3) has sent the matter to the Police for institution and investigation of the case. A case was registered as Pirbahore P.S. Case No. 216 of 2009. After investigation Police submitted the charge sheet for offences under sections 406, 420, 408 and 120B of the Indian Penal Code. It appears, due to pressure of the Police and looking to the prolongation of criminal case, these petitioners have returned the money to the Patliputra Tobacco' Company and on receipt of the money an application for discharge was filed by the petitioners stating that the parties have settled their dispute and accordingly, they should be discharged from the case. The court below while passing the order has recorded that Section 409 of the Criminal Procedure Code is not compoundable and refused to give the relief of discharge to petitioners which is under challenge before this Court. From the record it appears that petitioner Nos. 1 and 2 filed an application for regular bail where this Court had directed the parties to file the application for withdrawal of cases and the court below was directed to pass an appropriate order in accordance with law.
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5. The counsel for the opposite parties has submitted that the opposite parties would not have any grievance if the order of discharge is passed only in favour of these petitioners as they have already returned the money and they are not interested to pursue the case against them. However, he has submitted that this order should be limited to petitioners only and the same benefit should be extended to other accused persons.
6. The counsel for the petitioners submits, the court below has rightly refused to discharge the petitioners as the provision under section 409 Cr. P.C. is non-compoundable but this Court in exercise of power u/s 482 Cr. P.C. in the case of private dispute being non-compoundable can quash the proceeding. The counsel for the petitioner further submits that the present case is completely a private dispute and as such, continuation of the proceeding against these petitioners will be nothing but an abuse of the process of the Court and relied on a judgment reported in 2012 (1) PLJR SC 133 (Shiji Vs. Radhika)[: 2011 (13) JT SC 180 (Shiji @ Pappu and Ors. Vs. Radhika and Anr.)] and paragraph 13 of this judgment, which is as follows:-
"Para 13- It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse 5 Patna High Court Cr.Misc. No.42932 of 2011 (2) dt.20-09-2012 5/7 exercise of its power under Section 482 Cr. P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr. P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non- compoundable. The inherent powers of the High Court under Section 482 Cr. P.C. are not for that purpose controlled by Section 320 Cr. P.C. Having said so, we must hasten to add that the plenitude of the power under Section 482 Cr. P.C. by itself, makes 6 Patna High Court Cr.Misc. No.42932 of 2011 (2) dt.20-09-2012 6/7 it obligatory for the High Court to exercise the same with utmost care and caution. The width an the nature of the power itself demands that its exercise is sparing the only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked."
7. The counsel for the petitioner has further submitted 7 Patna High Court Cr.Misc. No.42932 of 2011 (2) dt.20-09-2012 7/7 that as in that case also there was an allegation under Section 494 which was not compoundable but the court has found that it was primarily a personal dispute having no public effect. He has further submitted that in non-compoundable cases where it is completely personal dispute, this Court can allow the petition in exercise of power u/s 482 Cr. P.C. as in the present case, opposite party No. 2 who is the Accountant on receipt of money having shown his desire to end the proceeding against petitioners it will unnecessary prolongation of the case without any fruitful result as they are not interested to proceed with the case.
8. In view of the judgment and submission of the party, the order dated 17.11.2011 is set aside to the extent of three petitioners, namely, Rajesh Kumar, Rakesh Kumar and Raushan Kumar and they are, accordingly, discharged from the case but the court below will continue the trial of the other accused persons.
9. Accordingly, this petition is allowed against petitioners only.
(Shivaji Pandey, J) Mahesh/-