Jharkhand High Court

Purshotam Kumar Rai @ Purushottam Kumar vs The State Of Jharkhand on 1 July, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No.941 of 2021
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1. Purshotam Kumar Rai @ Purushottam Kumar, aged about 39 years, son of late Vashishtha Prasad Rai @ B.P. Rai, resident of Brahmarshi Cloloy, Hatgarha, Karnibag, P.O. & P.S. Kunda, District Deoghar

2. Abhishek Newar, aged about 42 years, son of Vinod Kumar Newar, resident of Newar Bhawan, Kestiyar Town, P.O. & P.S. Deoghar, District Deoghar

3. Uttam Kumar Rai, aged about 43 years, son of Bashisht Prasad Rai, resident of Brahmarshi Cloloy, Hatgara, Karnibag, P.O. & P.S. Kunda, District Deoghar

4. Babblu Kumar Rai @ Bullu Kumar Rai, aged about 34 years son of Byash Rai, resident of Dumariya, P.O. Bamangaon, P.S. Sarath, District Deoghar ... Petitioners Versus

1. The State of Jharkhand

2. Anuj Kumar, son of Shri Kapildeo Prasad, resident of Barsamsiya, Near Children Jail, P.O. & P.S. Dhansar, District Dhanbad ... Opposite Parties

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             For the Petitioners         : Mr. R.S. Mzumdar, Sr. Advocate
                                           Mrs. J. Mazumdar, Advocate
                                           Mr. Rohan Mazumdar, Advocate
                                           Mr. Nishant Kr. Roy, Advocate
             For the State               : Mr. V.K. Vashistha, Spl.P.P.
             For the O.P. No.2           : None
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                                          PRESENT
                  HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-      Heard the parties.

2. No one turns up on behalf of the opposite party No.2 in spite of repeated

calls though the opposite party No.2 has put his appearance through his

advocate.

3. This Criminal Miscellaneous Petition has been filed invoking the

jurisdiction of this Court under Section 482 of the Code of Criminal Procedure

with a prayer for quashing the order dated 03.02.2021 passed by the learned

Judicial Magistrate-1st Class, Dhanbad including the entire criminal

proceedings in connection with C.P. Case No.3740 of 2019 whereby and where

under the learned Judicial Magistrate-1st Class, Dhanbad has found sufficient

material to proceed against the petitioners for having committed the offences

punishable under Section 323, 379 of the Indian Penal Code.

4. The brief facts of the case is that there was a business transaction

between the informant-complainant- opposite party No.2 and the petitioners in

which the opposite party No.2 altogether invested Rs.20,95,075/-. The

petitioners misappropriated the said money of the opposite party No.2. The

opposite party No.2 sent a legal notice to the petitioners, so, there was

animosity between the parties. In this background on 27.11.2017 at 5:00 Hrs, the

petitioners overtook the vehicle of the opposite party No.2 while going to the

hotel and stopped him. They criminally intimidated the informant by enquiring

him with pistol pointed at the temple of the head of the opposite party No.2 to

forget about the money; about which the opposite party No.2 sent the legal

notice and also threatened that otherwise the petitioners will kill the opposite

party No.2. The petitioners committed theft of gold chain worth Rs.50,000/-

and also committed theft of mobile phone and cash of Rs.75,000/-. They also

assaulted the opposite party No.2 that resulted in internal injury in the body of

the opposite party No.2. The opposite party No.2 first filed complaint Case

No.3460 of 2017. The same was referred to the police under Section 156 (3) of

the Code of Criminal Procedure. Consequent upon which Baliapur P.S. Case

No.191 of 2017 was registered but the police submitted final form showing lack

of evidence and did not send up the petitioners for trial. Alleging that in

collusion with the petitioners, the police did not submit chargesheet; the

opposite party No.2 filed a protest-cum-complaint petition which was

numbered as C.P. Case No.3740 of 2019.

5. On the basis of the protest-com-complaint, statement on solemn

affirmation and the statement of the enquiry witnesses, the learned Judicial

Magistrate-1st Class, Dhanbad found prima facie case for the said offences as

already mentioned in the foregoing paragraphs of this judgment.

6. Learned counsel for the petitioners submits that this false case has been

instituted with ulterior motive. If the allegations made in the complaint as well

as in the protest-cum-complaint petition is considered to be true in its entirety,

still no offence is made out against the petitioners as the dispute between the

parties is a civil dispute.

7. It is then submitted that the learned Judicial Magistrate-1st Class,

Dhanbad in a mechanical manner passed the order dated 03.02.2021. Hence, it

is submitted that the prayer made by the petitioners in this Criminal

Miscellaneous Petition, be allowed.

8. Learned Spl.P.P. on the other hand vehemently opposes the prayer made

by the petitioners for quashing the order dated 03.02.2021 passed by the

learned Judicial Magistrate-1st Class, Dhanbad including the entire criminal

proceedings in connection with C.P. Case No.3740 of 2019 and submits that

only ground for quashing the order by which the learned Judicial Magistrate-1st

Class, Dhanbad has found prima facie case against the petitioners is that the

proceeding is the malicious one, but, such contention of the petitioner cannot

be determined at this stage and can only be determined at the time of

conclusion of the trial as has been held by the Hon'ble Supreme Court of India

in the case of Central Bureau of Investigation vs. Aryan Singh etc. reported in

(2023) SCC OnLine SC 379 paragraph-11 of which reads as under:-

"11. One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried." (Emphasis supplied)

and submits that the commission of theft and causing hurt, by no stretch

of imagination can be said to be a civil dispute. It is next submitted that even if

there is a civil dispute between the parties that does not entitle to the

petitioners to take law on to their own hands and commit the offence of theft

and causing hurt. Hence, it is submitted that the Criminal Miscellaneous

Petition, being without any merit, be dismissed.

9. Having heard the rival submissions made at the Bar and after carefully

going through the materials available in the record, it is pertinent to mention

here that it is a settled principle of law that whether the proceeding is a

malicious one or not can only be determined at the time of conclusion of the

trial as has been observed by the Hon'ble Supreme Court of India in the case of

Central Bureau of Investigation Versus Aryan Singh etc. (Supra).

10. Now, coming to the facts of the case, there is direct and specific

allegation against the petitioners of having committed theft of gold chain,

mobile phone of the opposite party No.2 and cash of Rs.75,000/-. There is also

direct and specific allegation against the petitioners of having caused hurt to

the opposite party No.2 by assaulting him. It is a settled principle of law that a

legitimate prosecution cannot be stifled by the High Court in exercise of the