Hitendra Goyal vs State Of Jharkhand
2021 Latest Caselaw 1428 Jhar

                                              1                        Cr. M.P. No. 905 of 2010


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr. M.P. No. 905 of 2010
             1.   Hitendra Goyal, son of D.C. Goyal, presently posted as Deputy Chief
                  Engineer, (Track), South Eastern Railway, Garden Reach, Kolkata,
                  presently residing at Railway's Bunglow No.18, at Railway Bunglow
                  No.18, at Railway Officers' Bunglow, Garden Reach, Kolkata, P.O., P.S.
                  & District- Howrah
             2.   Paritosh Das, son of Shaktipado Das, presently posted as Deputy Chief
                  Engineer (Construction), South Eastern Railway, Adra Division, Adra,
                  District Purulia, at present residing at Officers Bunglow, South Eastern
                  Railway, Qr. No. O-I, at Adra, P.O. Adra, P.S. Adra, District- Purulia
                  (W.B.)                                              ... Petitioners

                                          -Versus-

             1.   State of Jharkhand
             2.   Narendra Kumar Shrivastava, son of Late Paras Prasad, Resident of
                  Vidyapati Nagar, P.O. & P.S. Sidgora, Town of Jamshedpur, District-
                  East Singhbhum                                ... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. Md. Mokhtar Khan, Advocate Mr. Mahesh Tewari, Advocate For the Opposite Party-State : Mr. Shekhar Sinha, P.P. For Opposite Party No.2 : Mr. Rakesh Kumar Sinha, Advocate

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06/22.03.2021. Heard Mr. Md. Mokhtar Khan along with Mr. Mahesh Tewari, learned

counsel for the petitioners, Mr. Shekhar Sinha, learned P.P. appearing for the

opposite party-State and Mr. Rakesh Kumar Sinha, learned counsel for

opposite party no.2.

2. This criminal miscellaneous petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into account

the situation arising due to COVID-19 pandemic. None of the parties have

complained about any technical snag of audio-video and with their consent

this matter has been heard.

3. The present petition has been filed for quashing the entire complaint

case being Complaint Case No. 873 of 2005 and also the order dated

23.08.2006 passed in the said case by the learned Judicial Magistrate,

Jamshedpur, whereby, cognizance of the offence under Sections 341/506 of

the Indian Penal Code has been taken against the petitioners

4. The fact of the case in narrow compass is that the complainant was a

contractor, engaged in performing civil and other type of works. The

complainant represented M/s Shiva Constructions & Co. and had been

performing his contract work at South Eastern Railway, Chakradharpur. It

has been alleged that the petitioners being Railway officers have demanded

10% of the bills, prepared by the complainant. It has also been alleged in

the complaint case that on 10.07.2005 at about 03:30 p.m. while

complainant was returning from U.C.I.L. Turamdih Mines, he saw the

petitioners and two other unknown persons and these petitioners reminded

him to make payment of the money and not to go to any other authority.

The complainant did not agree to the proposal and as such the petitioners

lost temper and started abusing him. It has also been alleged that petitioner

no.1 caught hold of the hair of the complainant and slapped on his cheek

and gave fist blow on his back and petitioner no.2 also gave him fist blow

on different parts of the body. The other two unknown persons were armed

with weapons who threatened the complainant not to make hue and cry,

otherwise, he would be killed. It has further been alleged that petitioner

no.1 snatched golden chain worth Rs.12,000/- from him, but on hullah he

was rescued and taken to a Doctor, who had given him medical treatment.

5. Mr. Mahesh Tewari, learned counsel for the petitioners assailed the

impugned order taking cognizance as well as entire complaint proceeding

on the ground that the petitioners are higher officials of the Indian Railways

and they have been falsely implicated by the complainant, who happened to

a contractor of the Railways. He draws attention of the Court to the order

taking cognizance and submits that on perusal of this order, it transpires

that the main genesis of filing of the complaint case is with regard to certain

payment with regard to contract work done by the complainant and in the

order taking cognizance, the learned Judicial Magistrate, Jamshedpur has

considered that filing of the complaint case is only genesis of the payment

of bills. He further submits that in that view of the matter the case of the

petitioners is fully covered under Section 197 Cr.P.C. By way of referring

certain annexures annexed with this quashing petition, he submits that the

complainant is a contractor and he has not completed certain work, which is

disclosed at Annexure-2. By way of referring Annexure-3, which is a letter

written by the complainant praying therein to make payment of the security

and the bill payment, he submits that the matter was referred for

consideration to the law officer for guidance. By way of referring

Annexure-6 dated 28.10.2005, which is a confidential letter, he submits that

it has been disclosed that M/s. Shiva Construction & Co. and M/s J.B.

Enterprises, Jamshedpur were involved in forgery of National Saving

Certificates (NSCs) and recommendation for CBI enquiry was made by the

Railway. He also submits that with the malafide intention, the case has been

instituted against the petitioners, who are the officials of the Railway. He

relied upon the judgment rendered by the Hon'ble Supreme Court in the

case of State of Haryana and Others v. Bhajan Lal and Others ,

reported in 1992 Supp (1) SCC 335.

6. Paragraph 102 of the said judgment is quoted herein below:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

7. Mr. Md. Mokhtar Khan, who is the senior standing counsel for the

Railway also assisted the Court and submits that all the facts have already

been submitted by Mr. Mahesh Tewari. By way of relying the judgment

rendered by the Hon'ble Supreme Court in the case of D. Devaraja v.

Owais Sabeer Hussain, reported in (2020) 7 SCC 695, he submits that

this is a fit case to exercise power under Section 482 Cr.P.C. He also submits

that Section 197 has been considered by the Hon'ble Supreme Court in that

case. He refers paragraphs 30 and 49 of the said judgment, which are

depicted herein below:

"30. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari: (AIR p. 48, para 15) "15. ... Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. ...

There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction."

xxx xxx xxx

49. Citing the judgment of this Court in State of Haryana v. Bhajan Lal, Mr Poovayya argued that where a criminal proceeding is manifestly prompted by mala fides and instituted with the ulterior motive of vengeance due to private or personal grudge, power under Section 4 of the Criminal Procedure Code ought to be exercised to prevent abuse of the process of court and/or to secure the ends of justice."

8. On these grounds, they submit that the order taking cognizance and

entire complaint proceeding are required to be interfered with by this Court.

9. Mr. Rakesh Kumar Sinha, learned counsel for opposite party no.2

submits that the complaint case was filed under Sections 323, 341, 379,

384, 506 and 34 of the Indian Penal Code and the learned Judicial

Magistrate, Jamshedpur has rightly taken cognizance under Sections 341

and 506 of the Indian Penal Code as he came to the conclusion that

ingredients of those sections are there. He further submits that so far as

Annexure-6 is concerned, that is a confidential letter and how this letter has

been brought on record, it is for the Court to decide. He also submits that in

light of the judgment rendered by the Hon'ble Supreme Court in the case of

Raj Kishor Roy v. Kamleshwar Pandey and another , reported in

(2002) 6 SCC 543 particularly paragraph 11, Section 197 Cr.P.C. will not

apply in the case of the petitioners.

10. Paragraph 11 of the said judgment is quoted herein below:

"11. In this case, as indicated above, the complaint was that the 1st respondent had falsely implicated the appellant and his brother in order to teach them a lesson for not paying anything to him. The complaint was that the 1st respondent had brought an illegal weapon and cartridges and falsely shown them to have been recovered from the appellant and his brother. The High Court was not right in saying that even if these facts are true then also the case would come within the purview of Section 197 CrPC. The question whether these acts were committed and/or whether the 1st respondent acted in discharge of his duties could not have been decided in this summary fashion. This is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in the official course of his duty. The question whether the 1st respondent acted in the course of performance of duties and/or whether the defence is pretended or fanciful can only be examined during the course of trial. In our view, in this case the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of trial."

11. Learned counsel for opposite party no.2 further relied upon the

judgment rendered by the Hon'ble Supreme Court in the case of K.

Kalimuthu v. State by DSP, reported in (2005) 4 SCC 512 particularly

paragraph 15 and submits that Section 197 Cr.P.C. is not attracted in the

case in hand and the learned Judicial Magistrate has rightly taken

cognizance under Sections 341 and 506 of the Indian Penal Code.

12. Paragraph 15 of the said judgment is quoted herein below:

"15. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted."

13. Learned counsel for opposite party no.2 further referred Sections 339

and 503 of the Indian Penal Code and submits that in light of these

Sections, cognizance has rightly been taken under Sections 341 and 506 of

the Indian Penal Code.

14. Mr. Shekhar Sinha, learned P.P. appearing for the opposite party-State

adopted the argument of learned counsel for opposite party no.2 with

regard to Section 197 Cr.P.C.

15. On the premises of the above facts and the submissions of the

learned counsel for the parties, the Court is required to examine the scope

of Section 197 Cr.P.C. For the sake of brevity, Section 197 Cr.P.C. is quoted

herein below:

"197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the

expression" Central Government" were substituted. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.

(3A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

16. The ingredient of Section 341 I.P.C. is with regard to wrongful

restraint to the effect that if the accused voluntarily obstructs any person so

as to prevent that person from proceeding in any direction in which that

person has a right to proceed, he is said to have wrongfully restrained that

person. The ingredient of Section 506 I.P.C. is with regard to criminal

intimidation to the effect that any person threatens another with any injury

to his person, reputation or property, or to the person or reputation of any

one in whom that person is interested, with intent to cause alarm to that

person, or to cause that person to do any act which he is not legally bound

to do, or to omit to do any act which that person is legally entitled to do, as

the means of avoiding the execution of such threat, commits criminal

intimidation.

17. In light of the above facts and submissions of the learned counsel for

the parties, the Court has perused the order taking cognizance. In the order

taking cognizance, the court below after perusing the evidence has

recorded that the complainant has never raised that illegal demand for

passing the bills was demanded by the Railway officials, which was the

genesis of the case. Thus in the order taking cognizance, the learned

Judicial Magistrate has come to the conclusion that the case was filed only

because certain bills were not paid to the complainant. The fact of

snatching of gold chain was also not proved and it has also been recorded

in the order taking cognizance. However, the learned Judicial Magistrate has

come to the conclusion that prima facie case under Sections 341 and 506 of

the Indian Penal Code is made out, but it is not disclosed in the order taking

cognizance how all of a sudden he has come to that conclusion that those

sections are attracted when it has been recorded that snatching of gold

chain and theft have not been proved, as alleged in the complaint case.

Annexure-2 is the document regarding the decision of contract of the firm of

the complainant, wherein, in last paragraph there is noting about stoppage

of all the payments of the firm of the complainant. The said letter is dated

02.11.2004, whereas the complaint was filed on 12.07.2005. Thus, it is

apparent that after the noting on 02.11.2004, contained in Annexure-2,

complaint case has been filed in the year 2005. This amounts to putting

force upon the petitioners, who are happened to be the higher officials of

the Railway. The Court is not inclined to discuss all the documents, which is

annexed at Annexures- 3 to 6 at this stage, in view of the fact that the

Court while deciding the petition is not willing to roam and come to the

conclusion that no case is made out against the petitioners. Criminal law

cannot be set into motion as a matter of course. Summoning of an accused

in a criminal case is a serious matter. A reference may be made to the

judgment rendered by the Hon'ble Supreme Court in the case of Pepsi

Foods Ltd. v. Special Judicial Magistrate , reported in (1998) 5 SCC

749 in paragraph 28, which is quoted herein below:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

18. The Hon'ble Supreme Court in the case of Raj Kishor Roy (supra),

as relied by the learned counsel for opposite party no.2, has held that

Section 197 Cr.P.C. is mandatory where the act has been done by the

public servant in course of his service or in the discharge of his

duty and also held that protection under Section 197 Cr.P.C. not available,

if the act complained of is not in connection with the discharge of

official duty. On perusal of the cognizance order, it is crystal clear that on

examining the evidence, the learned Judicial Magistrate has almost negated

all the accusation against the petitioners and has also come to the

conclusion that non-payment of bills was the genesis of the complaint case.

It can be said that the petitioners have been implicated in the complaint

case while discharging the official duty. Thus, the judgment relied by the

learned counsel for opposite party no.2 is helping the petitioners to some

extent.

19. In the judgment relied by the learned counsel for opposite party no.2

in the case of K. Kalimuthu (supra), the Hon'ble Supreme Court has

come to the conclusion that sanction point can be determined

from stage to stage proceeding and that case was arising out of the

Prevention of Corruption Act, 1947 and in that purview, the

Hon'ble Supreme Court has held in paragraph 15 about the applicability

of Section 197 Cr.P.C. In light of the cognizance order read with

the complaint case, it transpires that criminal proceeding is

manifestly attended with mala fide and/or proceeding is

maliciously instituted with an ulterior motive due to private and

personal grudge. This aspect of the matter has been considered by the

Hon'ble Supreme Court in the case of State of Haryana & Ohers v.

Bhajan Lal & Others (supra). The proposition of law discussed by the

Hon'ble Supreme Court in the case of Pepsi Foods Ltd. (supra) has been

again reiterated by the Hon'ble Supreme Court in the case of Ramdeo

Food Products Private Limited v. State of Gujarat , reported in

(2015) 6 SCC 439.

20. In view of the aforesaid facts and applying the aforesaid principles

while going through the impugned order, entire complaint case being

Complaint Case No. 873 of 2005 and also the order dated 23.08.2006

passed in the said case, pending in the court of the learned Judicial

Magistrate, Jamshedpur are, hereby, quashed.

21. Accordingly, this petition stands allowed and disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/