Kartik Singh vs The State Of Jharkhand
2022 Latest Caselaw 1290 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2330 of 2017

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1.Kartik Singh, son of late Mohan Singh, resident of Howrah,40, Kalikundu Lane, PO Salthiya, PS Howra, District-Howrah-711101 (West Bengal)

2.Manoj Kumar Singh, son of late Jai Prakash Singh, Q.No.23A, Railway Colony, Baidyanath Dham, Deoghar, PO, PS and District-Deoghar ..... Petitioners

-- Versus --

1.The State of Jharkhand

2.Kalyan Kumar, son of Sri Ramadhar Prasad Puri, resident of Mohalla- Purandaha, PO Deoghar, PS Sub Division, District -Deoghar, Jharkhand ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Pandey Neeraj Rai, Advocate

For the State :- Mr. Shiv Shankar Kumar, A.P.P

For the O.P.No.2 :- Mr. Pran Pranay, Advocate

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7/31.03.2022 This petition has been filed for quashing the entire criminal

proceeding in P.C.R.Case No.03/2016 pending in the court of Railway

Judicial Magistrate, Madhupur, under sections 379, 427/34 of the I.P.C

including the order taking cognizance dated 01.04.2017.

The O.P.No.2 has filed the criminal case alleging there in that in the said complaint the complainant described himself as the proprietor of Baidyanath Catering, which had taken contract to run the canteen and trolley at Jasidih Railway Junction. The complainant claimed to have running the said business since 1996 after making payment of rent regularly to the Railways as per terms of the contract.

It has been alleged that arbitrarily the rent had been enhanced 14 times (approx.) by the railway authorities against which the complainant claimed to have made written complaints to the authorities. He also claimed to have asked for the rounds of such alleged arbitrary enhancement of the rent; which was neither replied to nor there was any action taken for reducing the

enhanced rent. Resultantly, he filed a writ petition, being W.P.No.5413 of 2016 before the Hon'ble Kolkata High Court, which is pending adjudication.

It has been further alleged that because of the order of the railway administration the complainant had ben forced to close the canteen and trolleys. He had kept the four trolleys with articles worth Rs.50,000/- locked therein.

It has been further alleged that on the date and time of occurrence, the accused persons had broken the lock of the trolleys and misappropriated the entire article kept therein with the assistance of unknown persons causing loss to him of more than Rs.50,000/-. It has been also alleged that the accused persons threw away the trolleys on the back side of the station premises which fact would be evident from the photographs attached with the impugned complaint.

It has been further alleged that the alleged incident took place in his absence when he came to know about it he met the accused whereupon it had been said to him that since he had filed a writ petition before the Hon'ble High Court against the railway administration so they (the accused persons) would ruin him. Allegation has been made of extending threat that if he would further agitate the matter, the lock of the canteen would also be broken and the articles kept there would be removed.

It has been further claimed that when he (the complainant) went to GRPS, Jasidih, he was advised to come through Court and accordingly this complaint is being filed.

Mr. Pandey Neeraj Rai, the learned counsel appearing on

behalf of the petitioners submits that the petitioners are officers of

Railways. The petitioner no.1 was Divisional Commercial Manager,

Asansol Division, Eastern Railway (West Bengal) and the petitioner no.2

was Commercial Supervisor, posted at Jasidih Junction, Eastern Railway.

Mr. Rai, the learned counsel further submits that pursuant to the

agreement entered into between the Eastern Railway and the petitioner,

he was provided a place of fixing the trolly in the Railway platform of

Jasidih Railway station. He submits that the licence fee was settled in

view of agreement dated 01.11.2005. Since the licence fee was not

received an arrear to the tune of Rs.26,85,123/- has accrued against the

O.P.No.2 and notice to that effect was issued on 08.06.2012. He further

submits that the said demand notice was challenged by the O.P.No.2

before the Calcutta High Court in W.P. No.19855(W)/2015 and by order

dated 08.09.2015 the writ petition was disposed of directing the

Commercial Manager to hear the petitioners and pass fresh order.

Pursuant to that, the petitioners were heard by the Railways and the

reasoned order has been passed by order dated 19.10.2019 and fresh

demand notice to the tune of Rs.54 lacs and odd has been issued against

the O.P.No.2 which has been swelled to the tune of Rs.73,27,278/-. He

further submits that the fresh order was again challenged by the

O.P.No.2 before the Calcutta High Court in writ petition being

W.P.No.5413(W)/2016 which was heard by Hon'ble Calcutta High Court

and it has been held that there is no illegality in raising the demand and

the petition of O.P.No.2 was dismissed. He further submits that the case

of the petitioners is fully covered in the light of the judgment of Hon'ble

Supreme Court in the case of Chandrapal Singh and Others v. Maharaj

Singh and Another, 1982 1 Suppl. SC pg.466. Paragraph nos.5 and 7 of

the said judgment are quoted hereinbelow:

"5. The appellants appeared before the learned Chief Judicial Magistrate and moved an application that the complaint filed by Maharaj Singh was incompetent and the court could not take cognizance of the offences mentioned therein in view of the provision contained in Section 195(1)(b)(i) CrPC, 1973 in the absence of a complaint by the court before which the offences were alleged to have been committed. The learned Magistrate rejected the application by his order dated August 4, 1980. Thereupon the appellants moved the High Court of Judicature at Allahabad under Section 482 CrPC invoking the inherent powers of the court to quash the proceedings, as it constituted an abuse of the process of law. It was contended before the High Court that Section 195(1)(b)(i) CrPC is attracted and, therefore, the learned Judicial Magistrate was in error in taking cognizance of the offences in the absence of a complaint in writing of the court before which the offences were alleged to have been committed. The High Court was of the opinion that

the Rent Control Officer is not comprehended in the extended definition of the expression 'court' as set out in Section 195(3), CrPC and, therefore, a complaint by the court is not a pre- condition for taking cognizance of the offences complained of by the complainant. On merits it was held that the learned Magistrate having taken cognizance of the offences as in his view there was a prima facie case to proceed with the complaint, it was not necessary to quash the proceedings at that stage. Hence this appeal by special leave.

7. Section 195(1)(b)(i) CrPC may be extracted: "195. (1) No Court shall take cognizance--

(b)(i) of any offence punishable under any of the following sections of the Penal Code, 1860, namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any court or * * * except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate." Sub-section (3) of Section 195 CrPC provides that in clause (b) of sub-section (1), the term "court" means a civil, revenue or criminal court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a court for the purposes of the section.

He further submits that the petitioner are the officers of the

Railways and they are protected under section 197 Cr.P.C.

Per contra, Mr. Pran Pranay, the learned counsel appearing

for the O.P.No.2 submits that the trolly of the petitioners was destroyed

and forcibly he has been thrown away from the platform and the

witnesses have supported the case of the O.P.No.2 and in that view of

the matter, the complaint has been rightly filed and there is no illegality

in the order taking cognizance.

In view of the above facts and considering the submissions

of the learned counsel for the parties, it is crystal clear that it is an

admitted position that pursuant to the agreement contained in Annexure

4, the O.P.No.2 was allowed some place to install the trolly in Jasidih

Railway Station. It is also not in dispute that the demand to the tune of

Rs.26,85,123/- has been raised with regard to agreement in question as

arrear of licence fee has been accrued to the O.P.No.2. Pursuant to the

direction of Calcutta High Court, the Commercial Manager passed the

reasoned order which was again challenged before the Calcutta High

Court and the said order was said to be a good one by the Calcutta High

Court. The enquiry witness evidence has also been annexed with the

petition and the enquiry witnesses were also not present on the point of

interfering with the trolly O.P.No.2. It is also admitted that the petitioners

are the officer of the Railways and they had entered into an agreement

in their official capacity. A frustrated tenant by way of agreement has

filed the complaint against the officers of the Railways. Moreover, the

petitioners are protected under section 197 Cr.P.C as they were

discharging the official duty. It is well settled that if the officer is not

discharging the official duty the said protection under section 197 Cr.PC is

not available and if it is proved that the act has been done in course of

the discharge of official duty, the protection under section 197 Cr.PC is

available to the officials, in the case in hand they were discharging

official duty. The case of the petitioners are covered under the direction 5

and 7 at paragraph no.102 of the judgment rendered in the case of 'State

of Haryana v. Bhajanlal', direction 5 and 7 of para.102 of the said

judgment are quoted hereinbelow:

"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.

xx xx xx (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.

xx xx xx (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.

As a cumulative of the above discussions and the reasons

and analysis, this petition succeeds and the entire criminal proceeding in

P.C.R.Case No.03/2016 pending in the court of Railway Judicial

Magistrate, Madhupur, under sections 379, 427/34 of the I.P.C including

the order taking cognizance dated 01.04.2017 are hereby quashed.

Cr.M.P.No.2330 of 2017 is allowed and disposed of.

( Sanjay Kumar Dwivedi, J)

SI/