Patna High Court - Orders
Bijaya Kumar Nayak vs State Of Bihar & Anr on 3 September, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.15023 of 2002
BIJAYA KUMAR NAYAK
Versus
STATE OF BIHAR & ANR
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9. 3.9.2010. Heard Sri B.K.Sinha, senior counsel appearing for the petitioner and the learned A.P.P. for the State.
This miscellaneous petition has been filed seeking the quashing of the FIR of S.K.Puri Case No.54 of 1998 under Sections 368, 465 and 471 of the IPC. The above noted FIR was instituted under Section 156(3)of the Cr.P.C. on the basis of Complaint Petition No.492 of 1997 which was filed by Opposite Party no.2 before Chief Judicial Magistrate, Patna.
The complaint petition runs in almost 50 paragraphs and has as its Annexures the plaint of Title Suit No.23 of 1997. Most of the facts appear admitted that the complainant and the present petitioner were employees of M/S Shaw Wallace and Company in its office at Patna. The petitioner was the Assistant Manager (Sales) of the said company till 1997 and subsequently left that company to join another at Gauhati. While serving the company as its Assistant Manager, the complainant alleged that the petitioner stopped him from working in the fields when he had arrived at Patna for 2 participating in a meeting and thereafter forced him with the help of a few goondas to sign three plain papers. Subsequently, the company stopped the payment of his salary and it was put into air by the present petitioner and others that the complainant had been fired from his employment.
The complainant has stated as may appear from Annexure-3 the plaint of Title Suit No.23 of 1997 which was filed by him before Munsif, Patna that he wrote at least half a dozen letters as may appear from paragraph-32 of the plaint addressed to the petitioner for clearing his dues including the rental, etc also but those requests fell on deaf ears and nothing came out of them. The complainant stated that he had to get his sister married and he was in dire need of money and in spite of that being pointed out by enclosing a marriage card, the petitioner did not do anything and ultimately the complainant had to prefer the above noted Title Suit No.23 of 1997 before Munsif, Patna. The complainant filed a petition under order 39 Rules 1 and 2 CPC seeking an order against the petitioner and his company not to retrench the complainant from their employment. When that petition was being heard, the petitioner 3 presented three letters in court as documents so as to resisting the prayer and it was found by the complainant that the three documents were forged and fabricated on account of being ante-dated, as the complainant had never been served nor he had ever received them either in their original or copy forms.
Thus, what appears admitted is that the three documents which were in the forms of letters, might be letters showing the retrenchment of the employment of the complainant and the above noted company, those were forged fabricated and further that those were produced from the custody of the present petitioner who was the Assistant Manager, (Sales) as just pointed out.
It hardly requires to be pointed out that the three documents which are alleged to be forged and fabricated, were produced during a judicial proceedings and those were presented for being used in that judicial proceedings by a court for reaching a particular conclusion. Thus, on the above fact the whole question for decision could be as to whether it could be a case for holing an enquiry under Section 340 of the Cr.P.C. or could it be a case for directing the investigation about the forgery of the documents and their use in the 4 proceeding which was being undertaken by the learned Munsif, Patna during the hearing of the petition filed under Order 39 Rules 1 and 2 CPC in Title Suit No.23 of 1997.
The judicial proceeding has been defined by Section 2(i) is as follows:-
"judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath;"
What may flow from the above definition is that a proceeding in which evidence is or may be legally taken on oath could be a judicial proceeding. This is too well-known to be pointed out that the averments of the petition under Order 39 Rules 1 and 2 CPC are required to be testified by affirming an affidavit about their truthfulness under the rules framed by this court in exercise of their powers under the Civil Procedure Code. The statements have to be supported by relevant documents. Taking and receiving evidence through affidavit in some of the proceeding which could be as summary as under Order 39 Rules 1 and 2 is not unknown to the court of Munsif, Sub-Judges or even this Court. The averments were made about the dismissal of the complainant while resisting the prayer 5 of injuncting the Company and its officer like the present petitioner from dismissing the petitioner. Those were necessary documents to be placed before the learned Munsif, Patna because those could point to the court of Munsif that the cause of action was never existing for filing the suit and as such there could not be either a prima-facie case or any balance of convenience in favour of the complainant who was the plaintiff of that suit. The production of the three letters, which were alleged by the complainant as forged and fabricated documents, were indeed production of evidence and receipt of the same in that shorter version of the judicial proceeding which was being undertaken by the learned Munsif, Patna in Title Suit No.23 of 1997.
Coming back to the provisions of Section 340 of the Cr.P.C. one could find that when an application is made to a Court to point out that it was expedient in the interest of justice that an enquiry be made into any offence referred to in clause(b)of Sub-section (1) of Section 195 of the Cr.P.C., which appeared committed in or any relation to the proceeding in that court or as the case may be in respect of a document produced or given in evidence in a proceeding in that court, such court may 6 after such preliminary enquiry if it thinks was fit to record a finding to that effect, that is to say, that some offence appears really committed in or any relation to the proceeding in that court due to the production of the document which could be forged and fabricated during the hearing of that particular proceeding and thereafter the court may direct a complaint to be made in writing. If one comes to the provision of Section 195 of the Cr.P.C. then one could clearly appreciate as to what necessarily was to be done in the present case. Section 195 Cr.P.C. by virtue of its sub-section (1) bars the taking of cognizance of offences under Section 463, 471, 475 or 476 of the Penal Code if a complaint has not been made in writing by the court. The word "court" which appears in Section 195 is relatable to the court which appears in Section 340 of the Cr.P.C. which is ordained to hold an enquiry under that particular provision of the Cr.P.C. so as to deciding the question of filing a complaint or not to filing a complaint. One may find that 195 Cr.P.C. does not have in its ambit the offence under Section 368 of the Cr.P.C. I will deal with that part of the order a little bit later, because I just pointed out that on admitted facts the three letters which had been produced from 7 custody of the present petition were utilized in a proceeding before a court and as per allegations they were forged and fabricated and as such it was essential in the ends of justice as also for in its expediency that the learned Munsif, Patna could have been approached through an application for holding an enquiry under Section 340 of the Cr.P.C. as that court was the only competent court so as to adjudicating upon the launching of the prosecution and it was never the complainant.
Coming back to the issue of whether the facts even in the compliant petition taken to be true on their face value, constituted an offence under Section 368 of the IPC. 368 IPC punishes the offence of wrongfully confining a person knowing that he has either been abducted or kidnapped. The allegation in the complaint petition is that the complainant went into the office of the petitioner and he was forced on account of the presence of the two goondas hired by the petitioner or his company to put his signatures on three different plain papers. Thus, the element of kidnapping or abduction appears completely absent. Even if the allegation in that behalf could have been there, the very 8 Section 368 IPC refers to the knowledge of the offender about the person either being kidnapped or being abducted and then confining him wrongfully or concealing him wrongfully. There is no element of knowledge. There is also a complete absence of the facts indicating that the complainant was wrongfully confined or concealed. No offence, as such, under Section 368 IPC could be said to be made out.
Courts are very slow in quashing the FIR but the extraordinary and exceptional powers under Section 482 of the Cr.P.C. which inheres in the High Court are meant to be exercised in such cases in which it otherwise appears necessary for the ends of justice. "Otherwise to secure the ends of justice" always signifies that such a cases could be few and far between which could be covered by that particular provision of Section
482. Coming to the facts of the present case, it appears to me a fit case in which that particular part of the provision fully applies as the whole attempt of the complaint to this court appears only to put criminal pressure upon the company and its high ranking officer like the petitioner so that the complainant succeed in 9 being taken back in the employment of the company. The whole prosecution also appears only with a view to harassing the petitioner by foisting upon him false and baseless prosecution.
In the light of the above, I find merit in the petition and the same succeeds. The FIR of S.K.Puri P.S.Case No.54 of 1998 is here by quashed.
B.Kr. ( Dharnidhar Jha, J.)