Jharkhand High Court
Rabindra Nath Sen vs The State Of Jharkhand on 23 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Cr.M.P. No. 389 of 2018
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 389 of 2018
1. Rabindra Nath Sen, Ex-Chairman, DVC, Kolkata
2. Amitava Mallick, Retired Ex, Director (HRD & System), DVC, Kolkata
3. Sudhir Mukherjee, Deputy Chief Engineer (Fuel Section), DVC, Kolkata
4. Divya Rashmi Pathak, Retd. I.G., C.R.P.F., Gurugram
5. Tapan Bandhopadhyay, Retd. Executive Director, DVC, Durgapur, West
Bengal ... Petitioners
-Versus-
1. The State of Jharkhand
2. Ashok Kumar Jain ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. R.N. Sahay, Sr. Advocate
Mr. Soumitra Baroi, Advocate
For O.P. No.2 : Mr. Shailesh Kumar Singh, Advocate
For the State : Mr. Sanjay Kumar Srivastava, A.P.P.
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12/23.01.2024 Heard Mr. R.N. Sahay, learned senior counsel appearing for the
petitioners, Mr. Shailesh Kumar Singh, learned counsel appearing for
opposite party no.2 and Mr. Sanjay Kumar Srivastava, learned counsel for
the State.
2. This petition has been filed for quashing the order dated 18.12.2017
passed by the learned Sessions Judge, Dhanbad in Criminal Revision
No.165/2017 arising out of C.P. Case No.812/2016 instituted for commiting
offences under Section 500/501 of the Indian Penal Code read with Section
120B of the Indian Penal Code.
3. The complaint case was filed by opposite party no.2 alleging therein
that he joined the services of Damodar Valley Corporation (DVC) Trainee
Engineer on 16.03.1989 and he retired from services on 31.01.2013 as
Chief Engineer-II. Just five days prior to his retirement from services of
DVC, the complainant was served upon with a charge-sheet on false and
flimsy grounds and a domestic inquiry was set up against him which
culminated into exoneration of all charges passed by the Disciplinary
Authority of the DVC i.e. Chairman. It was further alleged that the
complainant instituted a suit for recovery of Rs. 20 Crores for malicious
inquiry, loss of reputation etc. which was registered as Original Suit No.
324/2015 in the Court of the Learned Civil Judge, Sr. Div. IInd at Dhanbad.
The accused persons (present petitioners of this case) appeared in the said
suit and filed a common written statement in which slanderous and
defamatory statements have been made by the accused persons against the
complainant like:
a. The complainant (O.P-2 in the present case) was involved in
corruption and defalcation of cement purchase in the year 2008 in
huge quantity showing urgency of work on local purchase. The
proceeding initiated by management and lastly the management
excused and exonerated from charge to the complainant.
b. The complainant wrongly and fraudulently claiming himself as
President of DVC Engineers Association and Additional Secretary
General of AIPEE for which complainant not produced any record or
documents that he was lawfully elected as president of DVC
Engineers Association and additional secretary general of AIPEE but
become self made leader or president.
c. The O.P-2 is a double standard man neither he contested the
charge during the enquiry proceeding not produced any documents
witness to disprove the allegation of management but regularly
threatened the enquiry officer, presenting officer and the then
chairman of DVC to implicate in false and fabricated criminal or civil
case or cases in court of law.
It was further alleged that the complainant (O.P-2) has been a dry
honest sincere official of DVC who had proposed for issuance of office
memorandum for recovery of money for illegal consumption and
unauthorised use of electricity whereas the DVC management issued the
same. The Secretary, Ministry of power was also apprised of the loss which
was accordingly acted upon. The complainant also saved several crores of
Rupees by way of highlighting loss of revenue to the tune of rupees 150
crores per annum, due to employees and other unauthorised persons
harming etc. The complainant was President of DVC Engineers Association
and Additional Secretary General of all India Power Engineers Federation.
The complainant is an acclaimed whistle blower who has raised many
important issues in the interest of the national wealth. By imputing such
words such as mentioned herein above the accused persons with malafide
intentions and concerted efforts and imputation in writing with intention of
harming the reputation of the complainant with full knowledge that such
statement shall lower down the status of the complainant in the society. The
accused persons have indulged not only in character assassination of the
complainant but also tarnished his image among his friends, family
members and society at large. The accused persons have made awantonly
offensive allegation without any iota of truth in knowing it well that those
statements are false and untrue the same has been made in the pleading
before a court. No sooner did the written statements was filed in the court
and a copy where of was provided with the complainant many persons
started calling the complainant and ridiculed him. The said WS was referred
to in the open court and the common people also heard about such
allegations. It appears that accused persons in deep conspiracy with each
other circulated copy of the written statement on the date of filing the same
in the court just to give a wide coverage of those slanderous statements in
public domain and thus it was alleged that the accused persons have
committed offence punishable under section 500, 501 read with 120 of IPC.
4. Mr. R.N. Sahay, learned senior counsel appearing for the petitioners
submits that the petitioners were the employees of Damodar Valley
Corporation (DVC) and now all the petitioners have retired. He further
submits that opposite party no.2 was also an employee of DVC and he has
also retired from services. He also submits that the said complaint case was
considered by the learned Trial Court and vide order dated 11.04.2017 and
she has been pleased to dismiss the said complaint case. He submits that
against that order, opposite party no.2 preferred Criminal Revision
No.165/2017 and the learned Sessions Judge has set aside the said order
and remanded the matter to the learned Trial Court to further make enquiry
and, thereafter, pass a reasoned order keeping in view the observation
made by the learned Revisional Court. He submits that the observation
given by the learned Revisional Court was not in accordance with law as it
was in the domain of the learned Trial Court to consider that aspect of the
matter with regard to cognizance, however, the learned Sessions Judge has
exceeded his jurisdiction. To buttress this argument, he relied upon the
judgment passed by the Hon'ble Supreme Court in the case of Rajendra
Rajoriya v. Jagat Narain Thapak & another , reported in 2018 (2)
Supreme 100. Paragraphs 15 and 16 of the said judgment are quoted
hereinbelow:
"15. On a perusal of the Sessions Court judgment
(quoted supra), we are of the opinion that the Sessions
Court did not pass an order taking cognizance. The
Sessions Court order should have been construed only as a
remand order for further enquiry. The observations made
by the Sessions Court were only justification for a remand
and the same did not amount to taking cognizance. In view
of the above, the High Court clearly misconstrued the
Sessions Court order and proceeded on an erroneous
footing. On the other hand, the Revisional Court was also in
error to the extent of influencing the Magistrate Court to
keep the findings of the Sessions Court in mind, while
considering the case on remand. The misconception
created before the High Court was due to the fact that the
remand order provided discretion for the trial court to
conduct further enquiry and thereafter consider issuing
process. The High Court in the case at hand without
appreciating the dichotomy between taking cognizance and
issuing summons, quashed the complaint itself on wrong
interpretation of law. In the light of the above, the
impugned order of the High Court cannot be sustained in
the eye of the law.
16. Now coming to the second aspect as to the legality of
the order of the learned Magistrate taking cognizance of
the matter. The standard required by the Magistrate while
taking cognizance is well settled by this Court in a catena of
judgments. In Subramanian Swamy v. Manmohan Singh
[Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64
: (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] , this
Court explained the meaning of the word "cognizance"
holding that: (SCC p. 90, para 34)
"34. ... In legal parlance cognizance is 'taking judicial
notice by the court of law, possessing jurisdiction, on
a cause or matter presented before it so as to decide
whether there is any basis for initiating proceedings
and determination of the cause or matter judicially'."
We may note that the Magistrate while taking cognizance
has to satisfy himself about the satisfactory grounds to
proceed with the complaint and at this stage the
consideration should not be whether there is sufficient
ground for conviction. It may not be out of context to note
that at the stage of taking cognizance, the Magistrate is
also not required to record elaborate reasons but the order
should reflect independent application of mind by the
Magistrate to the material placed before him."
5. Relying on the above judgment, Mr. R.N. Sahay, learned senior
counsel appearing for the petitioners submits that in view of the observation
made by the learned Revisional Court to look into the observation made
therein, the learned Trial Court is not allowed to apply its independent mind.
6. Mr. R.N. Sahay, learned senior counsel appearing for the petitioners
further submits that earlier also, the C.P. Case No.1225/2013 was filed by
opposite party no.2, which was dismissed by the learned Trial Court vide
order dated 05.08.2013. He also submits that opposite party no.2 has filed
Original Suit No. 324/2015, wherein, the prayer was made for directing the
defendants (petitioners) to pay a sum of Rs.4 Crores for causing loss of post
retirement earning due to illegal and malicious disciplinary proceedings and
to pay a sum of Rs.8 Crores for making defamatory statement against the
plaintiff (opposite party no.2). He submits that the said original suit was
decided on contest and the same was dismissed vide judgment dated
29.05.2020. He submits that for the same cause of action, the present case
has been filed against the petitioners, who have bonafidely acted and
disciplinary proceeding was initiated against opposite party no.2. He submits
that in view of that, the learned Revisional Court's order is fit to be set
aside.
7. On the other hand, Mr. Shailesh Kumar Singh, learned counsel
appearing for opposite party no.2 submits that defamatory words have been
used against opposite party no.2 in the written statement filed by the
petitioners before the learned Court in Original Suit No.324/2015 and in
view of that, reputation of opposite party no.2 has been harmed. He further
submits that the learned Revisional Court has rightly passed the impugned
order. He refers to certain paragraphs of the complaint case and submits
that the reputation of opposite party no.2 has been badly effected and in
view of that, the learned Revisional Court has rightly passed the order.
8. Mr. Sanjay Kumar Srivastava, learned counsel for the State submits
that the learned Court has rightly passed the order.
9. The Court has gone through the materials on record including the
contents of the complaint case, the order of the learned Trial Court, the
order of the learned Revisional Court as well as the judgment of the learned
Court in Original Suit No.324/2015. It is an admitted position that these
petitioners and opposite party no.2 were employed in the DVC. In the
official capacity, certain departmental proceeding was initiated against
opposite party no.2 and two of the charges against opposite party no.2 has
been found to be true, however in the another charge, the Chairman of the
DVC has decided on his own to exonerate opposite party no.2. If such a
situation is there, the question remains how the definition of Section 499 of
the Indian Penal Code is attracted. These petitioners have acted in the
official capacity and it is not a case that in all the charges, the opposite
party no.2 has been exonerated. Two of the charges have been proved
against opposite party no.2.
10. Further, opposite party no.2 has filed C.P. Case No.1225/2013, which
was dismissed vide order dated 05.08.2013. The Original Suit No.324/2015
was instituted on 19.08.2015, which was decided vide judgment dated
29.05.2020 by which the same was dismissed. During pendency of the said
original suit, the present complaint case was filed and the allegations are
made that defamatory statements have been made by the petitioners in the
written statement against opposite party no.2. A petition was required to be
filed before the learned Court and if any objection was there, opposite party
no.2 was having remedy to move appropriate application before that Court
only for appropriate orders in terms of the provisions made under Order VI
Rule 16 of the Code of Civil Procedure and not doing that, opposite party
no.2 has filed the present complaint case.
11. By way of elaborate judgment, Original Suit No.324/2015 was
dismissed. Opposite party no.2 has not challenged that order in the
higher Court. It is well settled that the Civil Court's judgment can be
considered in the criminal case. A reference may be made to the judgment
passed by the Hon'ble Supreme Court in the case of Rukmini Narvekar v.
Vijaya Satardekar and others, reported in (2008) 14 SCC 1.
12. The Court finds that the learned Trial Court is required to pass a fresh
order looking into the observation made in the Revisional Court's order,
meaning thereby, the direction is there to look into the observation and pass
an order on the point of cognizance and the learned Trial Court was not
given a free hand to apply its judicial mind. If such a situation is there, the
order passed by the learned Revisional Court will not survive in light of the
judgment passed by the Hon'ble Supreme Court in the case of Rajendra
Rajoriya (supra).
13. In view of the above facts, reasons and analysis, the order dated
18.12.2017 passed by the learned Sessions Judge, Dhanbad in Criminal
Revision No.165/2017 arising out of C.P. Case No.812/2016 is set aside.
14. Accordingly, this petition is allowed and disposed of.
15. Interim order, if any granted by this Court, is vacated.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
