Judgment:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.7721 of 2010 Rajeshwar Prasad & Ors Versus The State Of Bihar & Anr For the petitioner : Mr.Sudhir Singh : Mr. Raghwara For the State : Murli Dha”
18. 01.2012 This application under Section 482Cr.P.C has been filed for quashing the order of cognizance dated 6.01.2010 passed by the learned Judicial Magistrate, 1st Class, Gaya in Complaint Case No. 1328 of 2003 for offence under Section 245 of the Code of Criminal Procedure.
2. According to the complaint the main allegation may be found in paras 10, 11 and 12 of the complaint petition filed by Sunil Narain opposite party no. 2 which are reproduced herewith:- That both the purchasers, the plaintiffs after purchase of the said property came in possession of the same and thereafter got their names recorded in the Anchal records and have been making payment of Malguzari and getting receipt in proof thereof. That against the said mutation of the names of the petitioner no. 1 and 5 the father-in-law of the defendant no. 1 and 5 and father of the 2 defendant no. 3 and 4 namely Jai Prakash Narayan, son of Late Ram Chandra Singh filed Mutatiobn Appeal being no. 05/04 in the court of the L.R.D.C ( Tekari) Gaya. The learned L.R.D.C, tekari ( Gaya) after hearing the said Jai Prakash Narayan on the grounds stated in the appeal and those urged at the time of hearing dismissed the Appeal vide order dated 16.07.2004. That it is submitted that the property originally belonged to Mostt. Gyani Kuer, wife of Late Tapsi Singh. The said Gyani Kuer and Tapshi Singh ahd one son Kamta Prasad Singh ( since dead) The said Kamta Prasad Singh after death of his father and mother, being only legal heir and successor inherited the entire property including the said property. The said Kamta Prasad Singh( since dead) had two wife namely Smt. Dhanraj Devi and Taluks Devi. The said Kamta Prasad Singh had no issue from his first wife Dhanraj Devi and as such married to Smt. Taluka Devi from he blessed with one son RamUdai Singh, who is vendor of the plaintiff. The said Ram Udai Singh being the only male member in the family and Karta of his family consisting his both mothers, sold the said property to the plaintiffs and put them in possession thereover.
3. On that basis cognizance is said to have been taken for the offences under Sections 323 and 379 of the IPC and summons issued against the petitioner.
4. The petitioners in that view of the matter filed a discharge petition before the learned Trial Court which 3 however rejected by order dated 6.01.2010. Learned counsel has pointed out from the aforesaid paras 10,11 and 12 of the complaint that on a bare perusal thereof, offences under Section 323 and 379 cannot be said to have been made out against these petitioners. The pointed allegation have been made against Mr. Tulsi Hajra Sub Divisional Officer under whose supervision and orders the cutting of the crops was performed and in fact the present petitioners have committed no offence much less as alleged. In support of his submission he has also referred to a letter dated 26.11.2003 written by the Deputy Superintendent of Police, Tekari addressed to the Sub Divisional Officer, Tekari for the requisition of police force along with a Magistrate for harvesting crops of Rajeshwar Prasad who is the petitioner no.1 herein.
5. Learned counsel for the petitioner therefore submits that in view of the aforesaid letter dated 26.11.2003 it is quite clear that the cutting and harvesting operation has been done in the presence of the authorities rather at the instance of the authorities and by no stretch of imagination, can the ingredients of Section 378 be said to have been fulfilled”
6. Service of notice issued to OP no. 2 by earlier order dated 29.11.2010 has reportedly been effected by personal service. However no one has appeared on behalf of the OP no. 2 to contest the present petition.
7. On a bare perusal of the impugned order dated 6.01.2010 it is found that Tulsi Hazra, the then present Sub Divisional Officer, has been discharged. I find that no reason whatsoever has been assigned for refusing to discharge the petitioners herein.
8. Considering that the main allegations in the complaint petition are directed against Tulsi Hazra and the present petitioners are stated to have merely accompanied him in the course of cutting and removing the paddy crops and in view of the finding that Tulsi Hazra has himself as acted in course of discharge of his official duty , I am of the view that no offence can be said to have been made out under Section 379 or 323 against the present petitioners who have merely accompanied the said official acting in discharge of official duty. As stated above no other material adverse to the petitioners have been adverted to in the impugned order.
9. In the above circumstances continuance of the 5 prosecution against the petitioner would amount to an abuse of process of court. As such the cognizance order dated 6.1.2010 is quashed in so far as concerns the present petitioners, and this application is allowed. . ( Vikash Jain,J.) Namita