Jharkhand High Court
Soumendra Mazumdar & Ors. vs State Of Jharkhand & Anr. on 25 August, 2009
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P.No.986 of 2006
Soumendu Mazumdar & Others. ... ...Petitioners
-Versus-
The State of Jharkhand & Anr. ... ... ...Opp. Parties
With
Cr.M.P.No.1350 of 2006
Soumendu Mazumdar & Others. ... ... ...Petitioners
-Versus-
The State of Jharkhand & Anr. ... ... ...Opp. Parties
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CORAM: THE HON'BLE MR. JUSTICE D.K.SINHA
For the Petitioners: M/s Vijay Pratap Singh, Sr. Adv. &
Ashok Kumar Sinha, Adv.
( In both the cases).
For the O.P.No.2: M/s P.P.N.Roy, Sr. Adv. & Arun Kumar
Pandey, Advocate.
( In both the cases)
For the State: Mr. V.S. Sahay, A.P.P.
( In both the cases).
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C.A.V. on 17.04.2009 : Pronounced on 25.08.2009
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D.K.Sinha,J. Both the petitions of the petitioners invoking the inherent
jurisdiction of this Court under Section 482 Code of Criminal Procedure
are taken together arising out of relevant and common causes.
2. In Cr.M.P.No.986 of 2006, the petitioners have requested for
the quashment of the order impugned dated 23.5.2006 passed by the
Additional Sessions Judge, Jamshedpur in Cr. Revision No.11 of 2006 by
which the revision preferred by the petitioners for setting aside the
impugned order dated 04.01.2006 passed by Shri D.C. Awasthi, Judicial
Magistrate, 1st Class, Jamshedpur was dismissed affirming the dismissal
order of the application of the petitioners under Section 205 of the Code of
Criminal Procedure in Complaint Case No. C-1 No.307 of 1997.
3. In Cr.M.P.No.1350 of 2006, the same set of petitioners
requested for quashment of the order dated 04.01.2006 passed by Shri
D.C. Awasthi, Judicial Magistrate, 1st Class, Jamshedpur in Complaint
Case No. C-1 No. 307 of 1997 as also quashment of entire criminal
prosecution launched against them in view of the order passed by the
Ranchi Bench of Patna High Court in Cr. Misc. No.4822 of 1998(R) on
08.03.2000.
4. The prosecution story as it stands narrated in the Complaint C/1 Case No. 307 of 1997 is that the Complainant-Respondent No.2 (Kamleshwar Singh) was an employee of TELCO, Jamshedpur since 1972 and was discharged from his service on 20.08.1990 to which reference case No.12/1991 was subjucide before a competent Court. The complainant claimed to be the member of Telco Works Union, having its 2 registration No.98. He claimed to be the member of its Executive Committee of said union also. The accused No.1 of the Complaint Case M/s Telco Limited, Jamshedpur is a Company, registered under the Indian Companies Act whose affairs used to be managed and governed by the Board of Directors, duly constituted as per the provisions of the Companies Act. The petitioners accused are the Senior Officers/ Office bearers of the Company. The complainant narrated that in terms of tripartite agreement dated 29.11.1973, a sum of Re. 1 per month was sought to be deducted from the salary of the workers/members as union subscription through "Check Off Form". The authorization of deduction of subscription so made was valid for a period of one year subject to renewal from time to time and pursuant to such agreement the Telco continued to deduct Re. 1 per month up-to August, 1995 from the salaries of the members of the Union. In October, 1995 it was detected by the members/ workers that the rate of subscription from their salary was raised from Re 1 to Rs. 5 per month, yet, no reply to their query was given by the management. On 02.04.1996 the matter was complained to the Registrar, Trade Union for the alleged increase in the subscription by Telco, followed by reminders. The Labour Commissioner endorsed the matter to the Deputy Labour Commissioner, Jamshedpur to enquire. The Telco while replying to the query to the Deputy Labour Commissioner stated that the increase in the rate of subscription towards union was initiated under the direction of Shri Gopeshwar, General Secretary to the registered Trade Union aforesaid who is an accused in the Complaint Petition. The complainant alleged that such direction was made without concurrence of the members of union or the members of the Executive Committee and that the management of Telco had been illegally deducting Rs. 5 per month as union subscription without obtaining authorization from the workers/ members at the behest and for the benefit of the accused Shri Gopeshwar the General Secretary of the said Union. Further allegation was that the accused fraudulently cheated the members of the union by amending the "Check Off Form" Form 8 of the Tripartite Agreement dated 29.11.1973 without adopting the prescribed procedure and by inserting the work " and will continue further" after the words "for a period of 1 year" in prosecution of criminal conspiracy. It was specifically alleged that the General Secretary i.e. an accused of the complaint Shri Gopeshwar forged the "Check Off Form" with a view to deceive the members of the Union who were employees under the management of Telco and in that manner the accused persons collected Rs. 11 lakhs from the earnings of the workers between the period September, 1995 and May, 1997 and diverted to the Union under the Full control of Shri Gopeshwar and in that manner the members of the Union were deprived of their property.
35. The Judicial Magistrate having been satisfied with the materials collected in course of enquiry of the Complaint Petition took cognizance of the offence under Sections 406/420/456/468 and 120B I.P.C. against the petitioners and some others.
6. Mr. R.P.Singh, Sr. Counsel appearing for the petitioners in both the petitions argued that under the Tripartite Agreement amongst the Telco Workers Union, Deputy Labour Commissioner and the Management of the Telco, the management agreed to deduct Re. 1 as membership fee on the basis of the authority "Check Off Form" and to remit the same to the fund of the Telco Workers Union. The admitted fact according to complaint is that the management remitted the entire amount so collected from the members of the Union to the fund of the registered trade union. The said Tripartite-Agreement was binding upon the concerned parties under Section 18 of the Industrial Disputes Act and violation of which in any manner was punishable under Section 23 of the Act. The cognizance of such violation could be taken in the manner provided under Section 34 of the Act.
7. Mr. Singh, the learned Senior Counsel attracted the attention towards the fact that the co-accused of the complaint C/1 Case No.307 of 1997 namely 1. S.J.Gandhi 2. V.N.Rawal 3. A.P.Arya 4. R.N.Thakur and
5. A.C. Sinha had preferred a petition by invoking inherent jurisdiction under Section 482 Code of Criminal Procedure vide Cr. Miscellaneous No.4822 of 1998(R) before the Patna High Court for quashment of the impugned order taking cognizance of the offence under Sections 406/420/456/468 r/w Section 120B I.P.C. dated 16.08.1997. The Ranchi Bench of Patna High Court by considering the facts and circumstances of the case and an observation made by the Supreme Court of India in S.L.P. (Criminal) No.1981 of 1989 (Annexure-3) allowed the petition of the co-accused on 09.03.2000 with the observation, " With all respects, I may say that the decision cited by the learned counsel is not applicable in the instant case because this Court is not going to give any verdict on the guilty of the petitioners by examining the defence in detail. From what has been subscribed by the learned counsel appearing for the petitioners, even if, the allegations in the complaint petition are not disturbed and are taken on its face value, it would appear that the complaint itself was incompetent having not been filed by or under the valid authority of the appropriate Government as required under the provisions of the Industrial Disputes Act because the matters related to the deduction of the subscription of the Union at the enhanced rate in violation of the Tripartite Agreement arrived at between the management and the Union. As such, it would appear that the learned court below took cognizance in the case without applying its mind to the aforesaid aspect of the matter which necessarily followed that he took cognizance in the case in a 4 mechanical manner so far as the petitioners are concerned. It has been admitted in the complaint petition itself that they have not made any forgery in the authority slip form-8, rather, it was the accused no.10, who fabricated or forged the same. It is also admitted position that the Company did not make the deduction of subscription at the enhanced rate for its wrongful gain because the complainant himself states that the amount of Rs.11,00,000/- deducted from the salary of the employees on account of the subscription of the Union was credited to the Account of the Union. Therefore, in this view of the matter even the admission of facts, as stated in the complaint petition, do not make out any case under Sections 406,467,468,420 and 120B of the Indian Penal Code against the petitioners, who being the responsible officers of the company, made deduction of the Union subscription from the salary of the employees on the instruction of the General Secretary of the Union acting or purporting to act bona fide in good faith on the instruction of the General Secretary of the Union. There is complete absence of any mens rea on the part of the petitioners for committing the alleged offences for which the learned Magistrate has taken cognizance against them and issued summons upon them. As held in the case of State of Haryana and others V. Ch. Bhajan Lal and others ( Supra). This court in exercise of its powers under Section 482 Cr.P.C. has to see that whether the prosecution of the petitioners is an abuse of the process of Court on account of the fact that the complainant has prosecuted them with ulterior motive. The attending facts and circumstances of the case as pointed out by the learned counsel for the petitioners indicate that the complainant was dismissed from the service for his misconduct, so, if this circumstance is considered along with other allegations made in the complaint petition, the possibility cannot be ruled out that the complainant has implicated the petitioners with oblique motive for wreaking vengeance on the accused due to his personal grudge and the prosecution of the petitioners in the case is definitely an abuse of the process of the Court."
8. The learned Sr. Counsel attracted the attention of this Court that the aforesaid order dated 09.03.2000 recorded in Cr. Misc. No.4822 of 1998 was drawn after hearing the parties and by which quashed the entire criminal prosecution against the accused petitioners namely S.J.Gandhi, V.M.Rawal, A.P.Arya, R.N.Thakur and A.C. Sinha. The order dated 09.03.2000 attained finality and it was neither challenged before any Superior Court nor was set aside, therefore, it was carrying binding effect upon the Sub-ordinate Courts.
9. Advancing his argument, learned Sr. Counsel submitted that the complaint itself was not maintainable having not been filed by or under the valid authority of the appropriate Government under the provisions of Industrial Disputes Act, as the matter was related to the deduction of subscription of the Union at the enhanced rate as allegedly in violation of the Tripartite Agreement, as such, the court below erred by taking 5 cognizance of the offence in the case without applying judicial mind and therefore, it shall be deemed that the cognizance was taken in mechanical manner. On the other hand, the C.J.M. being the Sub-ordinate Court was bound by the finding of the High Court by which the criminal prosecution of some of the accused of C/1 Case No. 307 of 1997 was quashed in Cr. Misc. No. 4822 of 1998 on 09.03.2000 but proceeded against the petitioners herein who are co-accused. Learned Counsel pointed out that though the complainant was not pursuing the Complaint Petition even then, the prayer of the petitioners for the dismissal of the complaint was not given effect to on the ground that the complainant had filed a fresh Vakalatnama. The impugned order dated 04.01.2006 did not indicate that the learned Magistrate had applied or had ever addressed the judgment rendered by this Court in Cr. Misc. No.4822/ 1998. Even assuming the technical ground that was taken by the Magistrate while rejecting the petition of the petitioners for discharge under Section 245(2) of the Code of Criminal Procedure, still under the changing circumstances, the petitioners were competent to prefer a second petition under Section 482 Cr.P.C. in view of the order passed by Ranchi Bench on 09.03.2000 in Cr. Misc. No. 4822/1998(R). The continuance of the proceeding, therefore, before the learned Magistrate as against the co-accused petitioners was wholly without jurisdiction as the order dated 09.03.2000 aforesaid attained finality as has not been interfered with by the Superior Court.
10. Finally Mr. Sr. Counsel submitted that in the case of Suresh Choudhary Vs. State of Bihar, reported in 2003(2) East Criminal Cases Page 100(S.C.) the Apex Court held:-
" This Court in a catena of cases has held where on the evaluation of a case this court reaches a conclusion that no conviction of any accused is possible the benefit of doubt must be extended to co-accused similarly situated though has not challenged the order of conviction by way of appeal."
11. On the other hand, Mr. P.P.N.Roy, learned Sr. counsel appearing for the Complainant-O.P.No.2 strongly refuted the contention advanced on behalf of the petitioners and submitted that the petitioners had earlier moved before the Patna High Court for the quashment of the cognizance order. The Ranchi Bench of the Patna High Court by its order dated 15th October, 1997 passed the following order on such petition in Cr. Misc. No. 6432 of 1997 (R) as quoted below:-
" It has been stated that next date has been fixed for appearance of the petitioners. Let the petitioners appear before the Judicial Magistrate, 1st Class, Jamshedpur where the case is pending in connection with Complaint Case No.307 of 1997 on the next date positively. If they appear on the next date then the court below may not take any coercive steps against them and 6 if any petition is filed bringing it into the notice of the court as required under section 245(ii) of the Cr.P.C. or any other provision of law, then the learned Magistrate shall consider the same and then proceed according to law.
This petition is disposed of accordingly."
12. In spite of the specific direction of this Court, referred to hereinbefore, calling upon the petitioners to appear in the Court of the Judicial Magistrate positively on the next date, they preferred to abstain and defy the order and instead, they filed a second revision in the garb of a petition under Section 482 Code of Criminal Procedure which cannot be sustained under law, the Sr. Counsel Mr. Rai added. Against the order of dismissal of their petition filed under Section 205 Code of Criminal Procedure, the petitioners have invoked the inherent jurisdiction of this Court for the quashment under Section 482 Cr.P.C. instead of a petition for Cr. Revision, which is not maintainable. There is no merit in either of the petitions and both the petitions are fit to be dismissed.
13. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the learned Judicial Magistrate has taken cognizance of the offence under Sections 406/420/456/468 r/w Section 120B I.P.C. against the petitioners in C/1 Complaint Case No.307 of 1997. In Cr.M.P.No.986 of 2006, the petitioners have requested for the quashment of the impugned orders passed by Shri D.C. Awasthi, Judicial Magistrate, 1st Class, Jamshedpur dated 04.01.2006 which was affirmed by the order dated 23.05.2006 passed by the Additional Sessions Judge, Jamshedpur in Cr. Revision No.11 of 2006 wherein the petitioners had preferred petition under Section 205 Cr.P.C. In Cr.M.P.No.1350 of 2006, the petitioners have prayed for quashment of entire criminal prosecution launched against them mainly relying upon the decision of the Ranchi Bench of Patna High Court passed in Cr. Misc. No.4822 of 1998(R) on 09.03.2000 by which the Criminal Prosecution of the co-accused arising out of the common complaint C/1 No.307 of 1997 was quashed by a reasoned order and the same attained the finality as not being interfered with by the Superior Court. Admittedly, the petitioners have been arrayed for the alleged criminal liability wherein other co- accused were also arrayed at the instance of the complainant-O.P.No.2 herein, common in both the quashing petitions. The learned Senior Counsel for the Complainant-O.P.No.2 failed to distinguish the case of the present petitioners from those whose criminal prosecution has been quashed by the order passed in Cr. Misc. No.4822 of 1998(R). The learned Sr. Counsel Mr. P.P.N.Roy appearing for the O.P.No.2 though strongly contended that the petitioners were asked by the order passed in Cr. Revision No.6432 of 1997(R) on 01.10.1997 to appear before the 7 Judicial Magistrate and in case of any petition filed on their behalf under Section 245(2) of the Code of Criminal Procedure or any other provision of law, the same would be considered by the Judicial Magistrate and then to proceed according to law. As a matter of fact, the petitioners had preferred Cr. Rev. No. 6432 of 1997(R) for the quashment of the entire criminal proceeding against them but no relief was granted. However, some of the accused of the complaint preferred Cr. Misc. No. 4822/1998(R) for the quashment of the entire criminal prosecution initiated against them. The Ranchi Bench of Patna High Court by a detailed discussion vide order dated 09.03.2000 quashed the cognizance of the offence as well as entire criminal prosecution launched against some of the accused of complaint C/1 No.307 of 1997 and the petitioners are admittedly the co-accused of the said complaint. The order passed in Cr. Misc. No. 4822 of 1998(R) has attained the finality as not being interfered with. I find that the defence of the petitioners herein for quashment of their entire criminal proceeding in such complaint needs consideration on the principle of equality before law and equal protection of law.
14. Relying upon the decision rendered by the Ranchi Bench of Patna High Court in Cr. Misc. No. 4822/1998(R) delivered on 09.03.2000, the cognizance of the offence taken against the petitioners herein who are similarly situated in C/1 Case No. 307 of 1997 pending before Shri D.C. Awasthi, Judicial Magistrate, Jamshedpur and their entire criminal prosecution is quashed. Both the petitions vide Cr.M.P.No.986/06 and Cr.M.P.No.1350/06 with amended prayer pursuant to I.A.No.248 of 2008 are allowed in the manner indicated above.
[D.K.Sinha,J.] P.K.S./A.F.R.