Jharkhand High Court
Om Prakash Singh Son Of Late R.P. Singh vs The State Of Jharkhand; on 15 February, 2019
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 1068 of 2008
...
Om Prakash Singh son of Late R.P. Singh, presently posted as Tax Daroga cum Security in-charge, Dhanbad Municipal Corporation, circle Sindri, resident of Qr. No.L-475, PO & PS Sindri, District-Dhanbad.
... Petitioner
-Versus-
1. The State of Jharkhand;
2. Santosh Kumar Banerjee, son of Late S.C. Banerjee, resident of Qr. No. III-10, N.A.C. Colony, PO & PS Sindri, District-Dhanbad.
...Opposite Parties CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA ...
For the Petitioner : Mr. Kripa Shankar Nanda, Advocate.
For the State : A.P.P.
For Opp. Party No.2 : Mr. P.K. Mukhopadhyay, Advocate;
Mr. Tejo Mistry, Advocate;
Mr. H.K. Chakraborty, Advocate.
...
CAV on: 12/10/2018 Pronounced on:15/02/2019
Ratnaker Bhengra, J:
1. Heard the parties.
2. Instant criminal miscellaneous petition is being filed for quashing of the order dated 11.06.2008, passed in C.P. Case No. 1914 of 2005, by the learned Judicial Magistrate, 1st Class, Dhanbad, whereby and whereunder, the aforesaid learned Court has been pleased to take cognizance of offences under Sections 379, 406, and 120B IPC as well as entire criminal proceeding against the petitioner, pending in the Court of learned Judicial Magistrate, 1st Class, Dhanbad and also for quashing of order dated 25.08.2011, passed by the learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No. 1914 of 2005 as well as order dated 29.01.2013, passed in Criminal Revision No. 267 of 2011, by the learned Additional Sessions Judge-V, Dhanbad, whereby and whereunder, both the courts below have refused to discharge the petitioner from the aforesaid case and directed to appear physically for framing of charge for the offence under Sections 379, 406, and 120B IPC.
23. Brief facts of the case is that the complainant informed the Deputy Superintendent of Police, Sindri, by his letter dated 14.03.2005 regarding the theft of 52 pieces of cast iron pipes, which was kept inside of bottling plant of N.A.C. Sindri. The cost of the theft of cast iron pipes is about Rs.8,00,000/- (Rupees Eight Lakhs only). The Deputy Superintendent of Police, Sindri, informed this matter to accused No.5 Jay Jyoti Samanta, the Special Officer, N.A.C., Sindri, on 15.03.2005. The accused No.5 asked for explanation to accused Nos. 1 and 3 about the theft of 52 cast iron pipes from the premises of bottling plant of N.A.C., Sindri. It is submitted that the Ex-Special Officer, namely, Akhileshwar Kumar, ordered Manoj Kumar / Bhandar Pal, N.A.C. on 17.11.2003 to replace the broken drain pipe on P.C.C. Road by taking four pipes from bottling plant of N.A.C. The petition submitted by the complainant to Deputy Superintendent of Police, Sindri on 14.03.2005 was forwarded to the O/C, Sindri Police Station for lodging FIR, but in spite of physical verification by the Special Officer (accused No.5) N.A.C. Sindri, no action has been taken against any one of the individual. The complainant himself by his petition dated 19.03.2005 submitted to the O/C Sindri, P.S. and subsequently on 01.04.2005, a joint petition of employees of N.A.C. regarding the above theft of cast iron pipes was submitted to accused No.7 but accused No.7 did not care to lodge the FIR for theft of such huge property of N.A.C. Sindri against any one so far. The complainant again submitted a petition to accused No.5 dated 06.05.2005 and requested to forward his petition to the local police to take legal action against the concerned persons. Accused No.5 forwarded his official letter dated 10.05.2005 along with relevant papers submitted by the complainant to O/C, Sindri Police Station which was received by the Police Station, Sindri on 19.05.2005. When neither any action was taken by the local police nor any steps was taken by accused No.5 so far for the theft of 52 pieces of cast iron pipes of Sindri, N.A.C., which costs Rs.8,00,000/-, informed the O/C Sindri P.S. by his application dated 23.11.2005 which was received by the Sindri Police Station on 25.11.2005 for immediate legal action and to recover the stolen cast iron pipes of N.A.C. Sindri. Arguments of learned counsel for the petitioner:
4. Learned counsel for the petitioner has submitted that by order dated 11.06.2008, the learned Judicial Magistrate, 1st Class, Dhanbad, and after perusal of the complaint, statement of the complainant on solemn 3 affirmation, and the statement of the witnesses, took cognizance that prima facie case is made out under Sections 379, 406, and 120B IPC against two accused, namely, Om Prakash Singh and Girish Chandra Pandey. Present quashing application has been filed in the year 2008 but till date the same has not been taken up and in the meantime, the application made by the petitioner for discharge from the case has been rejected by both the courts below vide order dated 25.08.2011, passed by the learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No. 1914 of 2005 and order dated 29.01.2013 passed in Criminal Revision No. 267 of 2011 by the learned Additional Sessions Judge-V, Dhanbad in revision.
5. Learned counsel for the petitioner has submitted that petitioner is innocent and committed no offence at all and he has been falsely implicated in this case. Opposite Party No.2, complainant, was simply an employee, equivalent to a clerk and posted as Work Sarkar in the Notified Area Committee, Sindri. Opposite Party No.2, complainant, himself has stated in solemn affirmation on oath that only the special officer of Notified Area Committee, Sindri is the competent authority to take any legal action including to lodge a compliant case either before the police or the court for any loss or damages in the Notified Area Committee, Sindri. On 24.02.1997, the Special Officer, N.A.C, Sindri issued an office order vide memo No. 1684 by which petitioner No.2, namely, Girish Chandra Pandey (since deceased, his name has been deleted from the cause-title vide order of this Court dated 20.06.2013) was directed to receive all the charges of articles of N.A.C. from Sri Mahendra Prasad, accordingly, petitioner No.2 took over the charges from Sri Mahendra Prasad on 29.12.1997, in which, nowhere about the 52 pieces cast iron pipes have been mentioned, meaning thereby, petitioner No.2 was not the custodian of those pipes hence no charge of theft so far against the petitioner(s) can be proved. It is stated that the said bottling/ dairy plant was not under the control of N.A.C., Sindri since 04.03.1994, because the entire premises of bottling plant was handed over to the Academic Quest, Dhanbad on lease to start a school in the name and style of "Indian School of Learning" and subsequently, in the year 2001, the same premises have been handed over to one Sri Akshay Kumar Singh for 25 years to start a Dairy plant on rent, in such a situation of any theft has been committed in the premises of bottling plant, the N.A.C., Sindri has no concern especially when it has already been handed over to Mr. Singh and 4 till today Mr. Singh is in possession of that premises. The Assistant Administrator, Dhanbad Muncipal Corporation, Sindri Circle, enquired into the matter and found that N.A.C., Sindri had never purchased the said pipes, hence, there is no question of any theft which clearly proves that the petitioner has been falsely implicated in this criminal case only to take personal revenge from the petitioner because the complainant is the ex-
employee of N.A.C., Sindri and due to his misconduct, or bad behavior he had been either punished or facing some criminal case also, which has been lodged by the N.A.C., Sindri and in some cases this petitioner is the witness on behalf of the N.A.C., Sindri. Due to the above reasons, the complainant filed such false criminal case against the petitioner just to teach lesson. From the facts and circumstances of this case, not a single Section is applicable in this case as because when the master of the articles i.e. N.A.C., Sindri itself says that never the alleged pipes had been purchased or trusted to the petitioner then there is no question of any theft as alleged in this case. The petitioner is the Public Servant, and in this case, the complainant (opposite party No.2) has not obtained any sanction from the competent authority. In absence of any sanction from the competent authority, the instant criminal proceeding cannot be initiated and is fit to be quashed. Arguments of learned counsel for opposite party No.2:
6. Learned counsel for opposite party No.2 has, on the other hand, argued that charge has already been framed against the accused persons and petitioner has also moved a Criminal Revision before the learned Sessions Judge, Dhanbad being Cr. Rev. No. 267 of 2011 for setting aside the order dated 25.08.2011, passed by the learned Magistrate where petition for discharge was rejected. The case is at the stage of evidence and at this juncture, the petition of the petitioner for quashing of the cognizance order became infructuous. It is well established that opposite party No.2, who is complainant of the case is very much competent to lodge a case since he is an employee of Notified Area Committee, Sindri. In the complaint, there is mentioning that the accused persons have committed theft of cast iron pipes from the campus of Bottling Plant of Notified Area Committee, Sindri and in this regard, the learned court-below after enquiry held a prima facie case against the petitioner and other accused persons under Sections 379/ 406/120-B IPC.
FINDINGS 5
7. I have gone through the records of the case, the impugned orders, and arguments of the learned counsels. The order dated 11.06.2008 passed in C.P. Case No. 1914 of 2005 by the learned Judicial Magistrate, 1st Class, Dhanbad, does not suffer from infirmities, and he has done the preliminary or procedural steps that need to be taken and then held as under:
"Attendance has been filed on behalf of the complainant. Perused the complaint petition, statement of complainant on S.A. and statement of six inquiry witnesses. All enquiry witnesses fully supported the prosecution story.
Hence prima facie case is made out u/s 379, 406, 120(B) I.P.C. against the two accused persons namely (1) Om Prakash Singh and (2) Girish Chandra Pandey named in the Complaint Petition, and sufficient material are available on record after issuance of summons.
Complainant is directed to file requisite within seven days. O/C is hereby directed to issue summon after filing requisite by the complainant. Put up on 3.7.08 for appearance."
8. I see no infraction of the law in what he has held. Relevant portion of the order of the learned Judicial Magistrate, 1st Class, Dhanbad dated 25.08.2011 passed in C.P. Case No. 1914 of 2005 reads as under:
"The cognizance has been taken against the accused u/s 379 IPC at the stage of evidence before charge i.e. u/s 244 Cr.P.C. The complainant has produced five witnesses. All of these witnesses have stated that iron pipe of NAC, Sindri has been stolen. C.W.-1 in para-4, C.W.-2 in para-2, C.W.-3 in para-5, C.W.-5 in para-1 of their examination-in-chief has stated that the accused petitioner Om Prakash Singh had the liability to look after the iron pipe. At the stage of framing of charge on a case instituted otherwise than police report, the court has to consider the evidences produced by the complainant u/s 244 Cr.P.C. At this stage this court cannot go into the defence of the accused persons neither this court can examine documents produced on behalf of the defence. At this stage I find that sufficient material is available in the evidence of the complainant's witnesses u/s 244 Cr.P.C. on the basis of which charge u/s 379/ 406/120B IPC can be framed against the accused. Accordingly, discharge petition of the accused dt. 25.03.11 stands rejected. The accused is directed to remain physically present on the next date for framing of charge. Put up on 19.09.11 for framing of charge."
9. Learned Additional Sessions Judge-V, Dhanbad, has in his order dated 29.01.2013, passed in Criminal Revision No. 267 of 2011, in para 3 to 5 noted the same. I too have had opportunity to go through the evidence of witnesses CW-1, CW-2, CW-3, and CW-5. I see no reason to disagree with the three impugned orders dated 11.06.2008, 25.08.2011 and 29.01.2013 of the learned courts-below.
610. Accordingly, prayer in Cr. M.P. No. 1068 of 2008 is rejected. Cr. M.P. No. 1068 of 2008 is thus dismissed. Consequently, prayers in I.A. (Cr.) No. 1936 of 2013 are rejected. I.A. (Cr.) No. 1936 of 2013 in Cr. M.P. No. 1068 of 2008 also stands dismissed. Accused to appear before the learned concerned court-below to comply with the order of the learned Judicial Magistrate, 1st Class, Dhanbad, dated 25.08.2011.
11. Let copy of this order also be sent to the learned Judicial Magistrate, 1st Class, Dhanbad, immediately to take appropriate steps.
(Ratnaker Bhengra, J.) S.B.-NAFR