Jharkhand High Court
Harish Chandra Yadav vs The State Of Jharkhand on 9 April, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 937 of 2014
Harish Chandra Yadav ..... ... Petitioner
Versus
1. The State of Jharkhand.
2. Surendra Kumar Singh ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mrs. Neeharika Mazumdar, Advocate. For the State : Mr. Jitendra Pandey, A.P.P. For the O.P. No. 2 : Mr. Kumar Nilesh, Advocate.
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09/ 09.04.2024 Heard learned counsel appearing for the petitioner, learned A.P.P. for the State and learned counsel appearing for the O.P. No. 2.
2. In this petition, prayer is made for quashing of the entire criminal proceeding including the order taking cognizance dated 30.08.2013, by which, cognizance for the offence under Sections 341, 323, 379 and 506 of the Indian Penal Code has been taken against the petitioner, in connection with Complaint Case No. 01 of 2012, pending in the court of learned Railway Judicial Magistrate, Dhanbad.
3. The complaint case was lodged by the complainant alleging therein that he is a contract in the Railways and the petitioner is working in the Railways and residing in a quarter allotted by the Railways. It has been further alleged that at the time of lodging of the case, the complaint has got renovation work of the railway quarters of Railways and in course of that the petitioner forced him to make an additional room in his quarter and when he refused the request of the petitioner, on 5.2.2012 at about 8 a.m., the petitioner abused and assaulted him by fists and slaps and also snatched Rs. 1,300/- along with certain documents and threatened him with dire consequences. On this information the complaint case has been filed before the learned Railway Judicial Magistrate, Dhanbad, which was sent for registration of First Information Report under Section 156(3) of the Code of Criminal Procedure and the same has been registered as G.R.P.S. Case No. 22 of 2012.
4. Mrs. Neeharika Mazumdar, learned counsel appearing for the petitioner submits that the petitioner is the employee of Indian Railways and presently posted as Deputy Chief Engineer under the Dhanbad Division of Indian Railways. She submits that the informant is -1- a contractor and a show cause was issued by the petitioner for not doing the work in accordance with the standard, thereafter maliciously the FIR was registered against the petitioner. She submits that the police has investigated the matter and final form was submitted, whereby, the petitioner has not been sent up for trial and recommendation was made under Sections 182 and 211 of the Indian Penal Code to proceed against the informant. She further submits that on the protest petition, the learned court has been pleased to take cognizance. According to her, even relying on the materials available in the case diary, the learned court has been pleased to take cognizance.
5. Mr. Jitendra Pandey, learned A.P.P. appearing for the State submits that the final form was submitted, however, on the protest petition, the learned court has been pleased to take cognizance against the petitioner.
6. Mr. Kumar Nilesh, learned counsel appearing for the O.P. No. 2 submits that on the protest petition, the learned court has rightly taken the cognizance. He submits that at this stage, this court may not interfere in the matter sitting under Section 482 Cr.P.C., as the High Courts are very slow in quashing the entire criminal proceedings, if the case is made out.
7. The petitioner is the employee of Indian Railways and presently posted as Deputy Chief Engineer under the Dhanbad Division of Indian Railways, i.e. not in dispute. It has been pointed out that for not doing the work in terms of the prescribed standard, the petitioner has taken certain action, thereafter the informant has filed the FIR. The police has investigated the matter and final form was submitted, whereby, the petitioner has not been sent up for trial and recommendation was made under Sections 182 and 211 of the Indian Penal Code to proceed against the informant. On the protest petition, the learned court has been pleased to take cognizance against the petitioner. The learned court has also taken note of the investigation conducted by the police and has relied upon the certain paragraphs of the case diary.
8. There is no doubt, the learned court is competent to take the cognizance on enquiry, however, if the learned court is taking the cognizance on the protest petition, the learned court is required to adopt -2- the procedure of the complaint case under Chapter-XV of the Code of Criminal Procedure and learned court could not take cognizance under Section 190(1)(b) of the Code of Criminal Procedure, on the basis of protest petition.
9. In the case in hand, the learned court has also looked into the case diary, thereafter has taken the cognizance. Reference may be made to the case of Vishnu Kumar Tiwari vrs. State of Uttar Pradesh, through Secretary, Home, Civil Secretariat, Lucknow and Another.", reported in (2019) 8 SCC 27. Paragraph nos.8 and 36 of the said judgment are quoted hereinbelow:-
"8. The order passed by the Chief Judicial Magistrate shows that there is consideration of the protest petition. Neither the Chief Judicial Magistrate nor the Additional Sessions Judge have failed to apply the correct principles of law. In this regard, it is apposite to notice the following observations made in the impugned judgment [Shiv Shanker Ojha v. State of U.P., 2017 SCC OnLine All 2895] of the High Court:
(Shiv Shanker Ojha case [Shiv Shanker Ojha v. State of U.P., 2017 SCC OnLine All 2895], SCC OnLine All para 10)
"10. In Pakhandu v. State of U.P. [Pakhandu v. State of U.P., 2001 SCC OnLine All 967 : (2001) 43 ACC 1096] , it is opined by the Court that in the case of final report the Magistrate has four options:
(1) He may agree with the conclusion of the police and accept the final report and drop the proceeding.
(2) He may take cognizance under Section 190(1)(b) CrPC and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed.
(3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.
(4) He may without issuing process and dropping the proceedings under Section 190(1)(a) CrPC upon the original complaint or -3- protest petition treating the same as complaint and proceed to act under Sections 200 and 202 CrPC and thereafter whether complaint should be dismissed or process should be issued."
36. A learned Single Judge of the High Court of Allahabad, in the aforesaid decision, had this to say in para 11: (Mohd. Yusuf case [Mohd. Yusuf v. State of U.P., 2007 SCC OnLine All 1283 : 2008 Cri LJ 493] , SCC OnLine All) "11. Where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case, the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Sections 200 and 202 CrPC. The Magistrate could not take cognizance under Section 190(1)(b) CrPC on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190(1)(b) CrPC the impugned order is vitiated."
10. In view of the above and looking into the order taking cognizance, the court finds that much efforts have been made in taking the cognizance against the petitioner by the impugned order by way of discussing the things of the materials of the case diary, which is against the mandate of law, as has been held by the Hon'ble Supreme Court in the case of Vishnu Kumar Tiwari (Supra).
11. In view of the above facts, reasons and analysis, the entire criminal proceeding including the order taking cognizance dated 30.08.2013, by which, cognizance for the offence under Sections 341, -4- 323, 379 and 506 of the Indian Penal Code has been taken against the petitioner, in connection with Complaint Case No. 01 of 2012, pending in the court of learned Railway Judicial Magistrate, Dhanbad, are hereby, quashed.
12. This petition is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.) Amitesh/-
[A.F.R.] -5-