Jharkhand High Court
Nemai Sundar Pater @ Nemai Sundar Patar vs The State Of Jharkhand on 1 May, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.242 of 2023
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Nemai Sundar Pater @ Nemai Sundar Patar, Aged about 81 years
S/o Late Satyanarayan Patar, resident of Village- Sukhjora, P.O. &
P.S. Ranishwar, District Dumka ... Petitioner
Versus
1. The State of Jharkhand
2. Krishna Chandra Mandal, Aged about 59 years S/o Late Bhakti
Pado Mandal, resident of Village- Sukhjora, P.O. & P.S. Ranishwar,
District- Dumka ... Opposite Parties
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For the Petitioner : Mr. Srijit Choudhary, Advocate
Ms. Tanya Rani, Advocate
Mr. Aayush Ojha, Advocate
Mr. P.P. Ojha, Advocate
For the State : Mr. Pankaj Kumar, P.P.
For the O.P. No.2 : Mr. Rajeeva Sharma, Sr. Advocate
Ms. Rita Kumari, Advocate
Mr. Om Prakash, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. 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 entire PCR Case No.1105 of 2022 including the
order taking cognizance dated 30.09.2022 by which the learned Judicial
Magistrate-1st Class, Dumka has taken cognizance of the offence punishable
under Sections 379 and 34 of the Indian Penal Code against the petitioner.
3. The brief facts of the case is that the petitioner was one of the members of
the Committee constituted by the Circle Officer in 2017-18 to manage the
'Sarvajanik Durga Puja' which is held every year near the temple owned by the
complainant and the temple being situated on the land belonging to the
complainant. The allegation against the petitioner is that after the end of 2017
Durga Puja, the petitioner has forcibly snatched away the gold and silver
ornaments of goddess Maa Durga from the said temple on 30.09.2017 at around
10:30 am in presence of the complainant, co-owners and Sebayatas of the said
temple.
4. Learned counsel for the petitioner submits that in the year 2017-18, the
Committee was constituted by the Circle Officer for management of the annual
Puja. It is next submitted that in the Durga temple, Durga Puja is performed
every year and the entire villagers of Sukhjora used to participate in the same
and even used to offer 'Dan' (gift) of gold and silver ornaments to the deity of
Goddess Durga which were donated by the villagers, were used to be put on
the deity of Maa Durga during Durga Puja and before immersion of the image,
the entire ornaments used to be put off from the deity. In the meeting of Puja
Samittee it was decided by the members of the Puja Samittee as well as the
villagers to keep the entire ornaments of Maa Durga in the bank locker at S.B.I.
Ranishwar Branch, in the name of Amal Patar- who is the son of the petitioner
and who is the license holder of Durga Puja for more than 30 years. Every year
during the annual Durga Puja, Panditjee Srimath Chakraborty after the Puja
used to put off the ornaments from the deity in presence of police party and the
police party used to accompany the jewelry to the bank with the license holder
and other villagers till the ornaments are kept in bank locker- which was
opened in the year 2017. It is next submitted that the petitioner was the
Secretary and license holder for performing the Puja and the complainant and
others were the members of the said Puja Samittee. The Superintendent of
Police, Dumka issued the license for the procession of Durga Puja in the name
of the petitioner. It is next submitted that the petitioner never took away the
ornaments of Goddess Durga, hence, the commission of theft does not arise nor
is there any allegation of dishonest intention on the part of the petitioner in
taking the ornaments and depositing the same in the bank locker maintained in
the name of his son.
5. It is further submitted that on 14.09.2018, a meeting was held in presence
of Circle Officer, B.D.O., Officer In-Charge of Ranishwar Police Station and the
complainant was also present there along with others and a temporary
committee was also constituted in which the petitioner was elected as
Secretary. The property was purchased for Durga Mata Thakurani by
registered sale-deed dated 05.06.2002 in the name of five persons including the
petitioner and the complainant/opposite party No.2 and in pursuance to the
sale-deed, the name of the persons as Sebayats Durga Mata Thakurani, were
mutated and entered in Register- II on 11.02.2021 and since thereafter receipt
were granted in the name of the of Durga Mata Thakurani's Sebayat.
6. Drawing attention of this Court towards the rejoinder dated 12.02.2024,
learned counsel for the petitioner submits that the ornaments which were
alleged by the opposite party No.2 to be stolen, were received on 21.10.2023
and the signature of the Sub Inspector of Police posted in Ranishwar Police
Station is also appearing in the list of ornaments received by the petitioner. The
committee members and the local administration has handed over the
ornaments to Amal Kumar Patar- son of the petitioner to keep the ornaments in
the locker of the said bank and the same list was signed by Mr. Rajan Jha- Sub
Inspector of Police posted in Ranishwar Police Station, the copy of which has
been kept at Annexure-13 dated 24.10.2023. It is next submitted that as the
petitioner has not permanently deprived the owner of the property or not taken
the jewelry for wrongful gain rather he has kept it for safe keeping to be used at
the time of annual Durga Puja, hence, it is submitted that even if the allegations
made in the complaint, statement on solemn affirmation and the statement of
the enquiry witnesses are taken to be true in their entirety, still the offence
punishable under Section 379 of the Indian Penal Code is not made out against
the petitioner.
7. It is further submitted that though the alleged occurrence took place on
30.09.2017 but the cognizance was taken only on 30.09.2022 i.e. after five year
and the complaint petition was filed on 21.06.2022, hence, cognizance has been
taken beyond the period of limitation prescribed under Section 468 of the Code
of Criminal Procedure which is three years for an offence punishable with
imprisonment for a term not exceeding three years but exceeding one year.
8. Learned counsel for the petitioner relies upon the judgment of the
Hon'ble Supreme Court of India in the case of M. Siddiq (Dead) Thr. Lrs.
(Ram Janmabhumi Temple Case) vs. Mahant Suresh Das & Others reported
in (2020) 1 SCC 1 and submits that if a person is in complete and continuous
management of the deity's affairs coupled with long, exclusive and
uninterrupted possession of the appurtenant property, such a person may be
recognized as a shebait despite the absence of a legal title to the rights of a
shebait. Hence, it is submitted that the entire PCR Case No.1105 of 2022
including the order taking cognizance dated 30.09.2022 by which the learned
Judicial Magistrate-1st Class, Dumka has taken cognizance against the
petitioner, be quashed and set aside.
9. Learned Public Prosecutor appearing for the State and the learned senior
counsel for the opposite party No.2 on the other hand vehemently oppose the
prayer of the petitioner to quash and set aside the entire PCR Case No.1105 of
2022 including the order taking cognizance dated 30.09.2022 by which the
learned Magistrate has taken cognizance against the petitioner. Learned senior
counsel appearing on behalf of the opposite party No.2 next submits that the
Deputy Commissioner, Dumka vide his order dated 31.03.2021 in Revenue
Misc. Petition No.02/2019-20 made a thorough enquiry and has observed that
the land in question belongs to the ancestor of the complainant who donated
the land. It is then submitted that the accused persons have no right, title and
interest to keep the gold and silver ornaments of "Maa Durga" in their locker.
Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.
10. Having heard the submissions made at the Bar and after carefully going
through the material in record, it is pertinent to mention here that the essential
ingredients to constitute the offence punishable under Section 379 of the Indian
Penal Code are as follows:-
(i) the accused removed any movable property,
(ii) the accused removed the property out of the possession of another
person without his consent,
(iii) he did so with a dishonest intention as has been held by the Hon'ble
Supreme Court of India in the case of K. N. Mehra vs. State of Rajasthan
reported in AIR 1957 SC 369.
11. Now, coming to the facts of the case, it is not the case of the complainant
that the ornaments which have been allegedly taken away by the petitioner and
others, were the property of the complainant. In the complaint itself, it has been
categorically mentioned that they are the properties of the Goddess Durga-the
deity Goddess's jewelry. The undisputed fact remains that besides the temple
of Goddess Durga, there is also a place where a community Durga Puja takes
place annually and a land has been purchased therefor and Annexure-9 is the
land documents which bears the name of altogether five persons in their
capacity at sebaits of 'Durga Mata Thakurani' including the petitioner and the
complainant. In the counter-affidavit filed by the complainant- opposite party
No.2, the complainant- opposite party No.2 has neither questioned nor
challenged the veracity of the same. The same is copy of a public document and
is a document of unimpeachable character. After the annual Durga Puja, the
idol of the Goddess Durga is required to be immersed then the question arises
where the gold and silver jewelry of the Goddess are to be kept and it is evident
from the undisputed document filed along with the rejoinder that after the
annual Durga Puja, the ornaments of the Goddess is kept in a locker
maintained in the name of the son of the petitioner and during the time of the
annual Durga Puja, the jewelries are put on the idol of the Goddess and after
conclusion of the annual Durga Puja, the same is taken off and are kept in a
locker in the presence of the Police personnel of Ranishwar Police Station.
12. Under such circumstances, this Court is of the considered view that even
if the entire allegation made in the complaint, statement of solemn affirmation
and the statement of the enquiry witnesses are considered to be true in their
entirety, still there being absolutely no allegation that the petitioner had any
dishonest intention in taking the jewelry; in the absence of this essential
ingredient of dishonest intention to constitute the offence punishable under
Section 379 of the Indian Penal Code, this court is of the considered opinion
that even if the entire allegation is considered to be true, still the offence
punishable under Section 379 of the Indian Penal Code is not made out against
the petitioner.
13. Thus, this Court is of the considered view that the continuation of the
criminal proceeding of the PCR Case No.1105 of 2022 including the order
taking cognizance dated 30.09.2022 by which the learned Judicial Magistrate-1st
Class, Dumka has taken cognizance against the petitioner, will amount to abuse
of process of law. Hence, this is a fit case where the entire PCR Case No.1105 of
2022 including the order taking cognizance dated 30.09.2022 by which the
learned Judicial Magistrate-1st Class, Dumka has taken cognizance against the
petitioner, as prayed for by the petitioner, be quashed and set aside.
14. Accordingly, the entire PCR Case No.1105 of 2022 including the order
taking cognizance dated 30.09.2022 by which the learned Judicial Magistrate-1st
Class, Dumka has taken cognizance against the petitioner, as prayed for by the
petitioner, is quashed and set aside.
15. In the result, this Criminal Miscellaneous Petition stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 01st of May, 2024
AFR/ Animesh-Saroj
