Patna High Court - Orders
Jamuna Chaudhary & Ors. vs The State Of Bihar & Anr on 9 September, 2014
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.43754 of 2011
======================================================
1. Jamuna Chaudhary S/O Late Thakur Chaudhary Resident Of Village-
Tumkariya, Police Station- Bairiya, District- West Champaran
2. Binod Chaudhary S/O Jamuna Chaudhary Resident Of Village-
Tumkariya, Police Station- Bairiya, District- West Champaran
3. Manoj Chaudhary S/O Jamuna Chaudhary Resident Of Village-
Tumkariya, Police Station- Bairiya, District- West Champaran
4. Mahadeo Chaudhary S/O Late Mathura Chaudhary Resident Of Village-
Tumkariya, Police Station- Bairiya, District- West Champaran
5. Chhote Lal Chaudhary S/O Chandrika Chaudhary Resident Of Village-
Tumkariya, Police Station- Bairiya, District- West Champaran
6. Chandrika Chaudhary S/O Late Brahm Chaudhary Resident Of Village-
Tumkariya, Police Station- Bairiya, District- West Champaran
.... .... Petitioners
Versus
1. The State of Bihar
2. Chandi Chaudhary S/O Rattan Chaudhary Tiswa Sariaya Police Station-
Bairiya, District- West Champaran
.... .... Opposite Parties
======================================================
Appearance :
For the Petitioners : Mr. Sajid Salim Khan, Advocate
Mr. Zainul Abedin, Advocate
For the Opposite Party No.1: Smt. Rina Sinha, APP
For the Opposite Party No.2: Mr. Satyapal Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL ORDER
8 09-09-2014The counsel for the petitioners files a supplementary affidavit, bringing on record the photocopy of the protest complaint petition. Let it be kept on record.
Heard learned counsel Mr. Sajid Salim Khan assisted by Mr. Zainjul Abedin, appearing for the petitioners and Mr. Satyapal Singh, learned counsel for the opposite party no.2.
The petitioners seek quashing of the order dated 21.10.2011 passed by the learned Judicial Magistrate, Bettiah, Patna High Court Cr.Misc. No.43754 of 2011 (8) dt.09-09-2014 2/6 West Champaran in Complaint Case No.3509 of 2010, whereby cognizance has been taken under Sections 420 and 379 of the Indian Penal Code.
Initially, a complaint was lodged by opposite party no.2 alleging that he was, at the relevant time, the elected President of Bairiya Prakhand Matasya Jivi Sahyog Samittee Limited and that the petitioners, some of whom were Ministers in the Samiti, had, by ignoring the rules, settled the Jalkars in favour of their relatives. It was further alleged by opposite party no.2 that any such settlement could have been done by the joint signature of the President. No signature of the complainant was obtained and for ulterior purposes and malafide motives, the settlement of the Jalkars was done in favour of only such beneficiaries, who were directly related to the Ministers, some of whom are the petitioners in this case.
The aforesaid complaint gave rise to Bairiya P.S. Case No.80 of 2010. The aforesaid first information report was investigated and finding no definite evidence against the accused persons, final report false was submitted. Annexure-2 is the final report submitted by the Investigating Agency. Thereafter, a protest petition was filed on behalf of the opposite party no.2 with exactly similar complaint as was made in the first complaint. Patna High Court Cr.Misc. No.43754 of 2011 (8) dt.09-09-2014 3/6 The aforesaid protest complaint, being treated as a complaint petition, was put to enquiry under Section 202 of the Code of Criminal Procedure. After examining the witnesses led on behalf of the opposite parties no.2 and on the solemn affirmation of the opposite party no.2, cognizance was taken against the petitioners under Sections 420 and 379 of the Indian Penal Code. The aforesaid order taking cognizance is under challenge.
The counsel for the petitioners submits that the present case is only a vindictive act on the part of the opposite party no.2 as, at the behest of the petitioners, he was removed from the post of President of the Samiti. It has further been submitted on behalf of the petitioners that on a consideration of the fact that opposite party no.2 was a defaulter in payment of Jalkar, a special meeting, was necessitated, of the members of the Samiti. The minutes of the meeting of the Samiti, which has been brought on record as Annexure-3, discloses that opposite party no.2 was removed from the post of President of the Samiti on 08.11.2008 and the responsibility was given to petitioner no.6, Chandrika Chaudhary, who controlled the functioning of the Samiti aforesaid.
The further submission on behalf of the petitioners is that the settlees have used the pattas given to them in a rightful Patna High Court Cr.Misc. No.43754 of 2011 (8) dt.09-09-2014 4/6 and judicious way and there is no evidence, whatsoever, of any illegal means having been employed by them to obtain such pattas in their favour. That some of the settlees happen to be the relatives of some of the petitioners in the petition, it has been urged, does not make out a criminal case against the petitioners, some of whom are the Ministers of the Samiti. Merely because some of the settlees stand in special relation to either petitioner no.1 or petitioner no.6, that by itself could not make the petitioners liable for any criminal prosecution. That apart, if the President of the Samiti was removed by the unanimous decision of the members of the Samiti, ratified by the rules of the Samiti, there was no occasion for the opposite party no.2 to have launched such prosecution. It is not difficult for this Court to lift the veil of this sham prosecution, which prima facie, appears to be actuated by motives other than the noble intention of bringing the wrongdoers to the book of law.
The counsel appearing on behalf of opposite party no.2, on the other hand, submits that such issues could be argued at the appropriate stage of framing of the charge. Cognizance has been taken on the basis of the materials, which were present before the learned Court below, namely, the complaint petition and the deposition of the witnesses. The order, it has been Patna High Court Cr.Misc. No.43754 of 2011 (8) dt.09-09-2014 5/6 submitted by the counsel for the opposite party no.2, does not require any interference at the stage of taking cognizance.
The submission made on behalf of opposite party no.2 is without substance. True it is that at the stage of taking cognizance, no roving enquiry is required to be done by the learned Magistrate. If the averments in the complaint petition make out a case as against the accused persons, it is good enough reason for taking judicial notice of such allegations. Nonetheless, without delving deep into the matter, it becomes very clear that only because of the opposite party no.2, having been removed from the post of President of the Samiti, that he chose to file the present protest complaint. After removal of the opposite party no.2 from the post of President of the Samiti, he becomes functus officio and normally should not have any truck with the affairs of the Samiti. The opposite party no.2, therefore, is a complete outsider so far as functioning of the Samiti is concerned. In the absence of any material having been brought on record by opposite party no.2 to suggest that the pattas was settled in favour of the beneficiaries on consideration, which were different from what was projected, there is no reason why this case should be allowed to be continued. In such an event, the order taking cognizance dated 21.10.2011 passed by the learned Judicial Patna High Court Cr.Misc. No.43754 of 2011 (8) dt.09-09-2014 6/6 Magistrate, Bettiah, West Champaran in Complaint Case No.3509 of 2010 is held to be without merits and is quashed.
The Application stands allowed.
(Ashutosh Kumar, J) Pawan/-
U T