Sada Nand Thakur, and ors. Vs. State of Bihar, and anr. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] - narcotics drugs & psychotropic substance act, 1985 - sections 8 - prohibition of certain operations -- the suspected narcotic recovered from the appellant was seized under seizure memo, exhibit p.22. the trial court by judgment and order dated 9.11.2005 passed in special case no.4/2005 held all the three accused, including the appellant guilty of offences punishable under sections 8/21(b) of the ndps act and sentenced them as noted above. against the judgment of the trial court, the appellant preferred criminal appeal no.2511/2005 before the high court. the high court dismissed both the appeals by judgment and order dated april 17, 2008. the appellant alone has come in appeal against the judgment of the high court. the present appeal arises out of the judgment dated 10.12.2007 passed by the learned single judge of the high court of allahabad (lucknow bench) whereby the learned single judge has dismissed the tax revision filed by the appellant under section 11 of the u. p. trade tax act (hereinafter referred to as "the act") impugning the judgment dated 14.8.2007 passed by the trade tax tribunal, lucknow rejecting the second appeal of the appellant/assessee. the interest charge on the tax could not have been charged under section 8(1) as the case falls under section 8(1b). as in the present case the tax becomes admittedly payable once it has been held that the tax is payable under the act, the interest would be payable in terms of subsection (1) of section 8 of the act and not in terms of subsection (1b) of section 8 of the act. this court in the case of commissioner of sales tax v. qureshi crucible centre, 1993 supp (3) scc 495 has held that where a dealer fails to pay tax at the correct rate because he claimed not to know the revision in the rate, the dealer remains liable to pay interest at a higher rate, penal rate under section 8 (1) from the date when the tax became due and payable. 1. fourteen petitioners, while invoking inherent jurisdiction of this court under section 482 of the code of criminal procedure, have prayed for quashing of an order dated 24.7.1999 passed by the learned chief judicial magistrate, araria in complaint case no.c 165 of 1997. by the said order, the learned magistrate has taken cognizance of the offences under sections 386, 452,323,147,148 and 504 of the indian penal code.2. short fact of the case is that opp.party no.2 , who is none else but the father-in-law of daughter of petitioner nos.1 and 2, who was killed in a case relating to araria p.s. case no.427 of 1996 filed a complaint case vide complaint case no.165 of 1997 in the court of the learned chief judicial magistrate, araria. the complainant disclosed that on 25.11.1996, he had come to patna for his treatment and in the morning of 27.11.1996 he got information that his daughter-in-law died in araria hospital due to diarrhoea, which was a natural death. it was further disclosed that the accused persons on 27.11.1996 after getting information of death of the daughter-in law of the complainant rushed to the house of the complainant and thereafter they assaulted the wife, son, daughter and other family members of the complainant. it has also been disclosed that the accused persons had come along with the police officers and in presence of the police officer; the petitioners looted the house-hold articles. in the complaint petition, description of each and every article has been given in detail. after filing of the complaint petition, the complainant was examined on s.a. and in support of the complaint petition, altogether five witnesses were examined as enquiry witnesses, who supported the allegations made in the complaint petition and thereafter by the impugned order, the learned magistrate has passed the order of cognizance for the offences under sections 386,452,323,147,148 and 504 of the indian penal code.3. aggrieved with the order of cognizance, all the aforesaid petitioners approached this court by filing the present petition. this petition was admitted on 25.2.2000. while admitting the case for hearing , this court had directed that pending disposal , further proceeding in complaint case no.c-165/97 pending in the court of c.j.m., araria shall remain stayed.4. sri pankaj kumar sinha, learned counsel appearing on behalf of the petitioners, while pressing the present petition, at the very out set has submitted that the present complaint petition was initiated against the petitioners in relation of a case, in which the complainant was made accused. it was submitted that the daughter of petitioner nos.1 and 2 was married to the son of the complainant, namely, sanjeev kumar @ bablu according to hindu rites and rituals on 9th june, 1995. at the time of 'dooragaman', the son-in-law of petitioner no.1 was adequately given house- hold articles as well as cash amount of rs.1.5 lacs. learned counsel for the petitioners, while referring to annexure-2 to the present petition, which is typed copy of the f.i.r. i.e. araria p.s. case no.427 of 1996, submits that the daughter of petitioner no.1 was killed by her husband, father-in-law, mother-in-law and other family members of her in-laws. it was disclosed in the f.i.r. that the marriage was solemnized in the year 1995 and thereafter adequately the son-in-law was paid by petitioner nos.1 and 2. in the f.i.r., it has been disclosed that payment was made even through bank draft. initially after dooragaman , the daughter of petitioner nos.1 and 2 lived with peace at her in-laws house but immediately thereafter, the family members of her in-laws started to put pressure to get money from her parents. it was disclosed that accused persons, i.e. complainant of the present case and other in-laws family of the daughter- in-law of petitioner nos.1 and 2 were putting pressure for purchasing a vehicle (jeep) in the name of the husband of their daughter. subsequently due to non-fulfilment the daughter of petitioner nos.1 and 2 was sent back to her parents' house and again after getting sufficient money , she was taken by her in-laws. it was disclosed that the daughter of petitioner nos.1 and 2 was repeatedly tortured and finally she was killed by the accused persons and with a view to conceal the murder , the family members of in- laws of daughter of petitioner nos.1 and 2 disposed of the dead body at a distant place . on 28.11.1996 at 11.00 a.m. at the house of opp.party no.2 , fardbeyan of opp.party no.1 was recorded and thereafter, on the basis of fardbeyan , an f.i.r. vide araria pa.s. case no. 427 of 1996 was registered for the offences under sections 304 b, 120b, 201/34 of the indian penal code. in the f.i.r., the complainant was arrayed as accused no.1 and his wife kiran mishra , his son sanjeev kumar @ bablu ( husband of the deceased) , kislay kumar ( brother of sanjeev kumar) and other four persons were also named as accused.5. learned counsel for the petitioners submits that after committing the murder, the complainant evaded his arrest and subsequently on 3rd december, 1996 he voluntarily surrendered in the court and prayed that he may be taken into judicial custody and he was remanded to the judicial custody. it was further argued that, while he was in custody, after lapse of several days in a calculated manner, a complaint petition was sent by opp.party no.2 to the court of the learned chief judicial magistrate, araria through his advocate. learned counsel for the petitioners submits that the complaint petition was not sent through the jail authority, though the complainant was inside the jail. in this case, lower court record was called for and the same has been received. i myself have perused the record. from the record it appears that there is no endorsement of the jail authority in the complaint petition. the complaint petition is dated 19.3.1997. it was argued that had the occurrence, as alleged in the complaint petition taken place, there was no difficulty in informing the learned magistrate while the complainant had surrendered before him on 3.12.1997. it was submitted that the present complaint petition was filed maliciously and on this ground, the order of cognizance is liable to be set aside.6. sri chandra shekher, learned senior counsel appearing on behalf of opp.party no.2 has vehemently opposed the prayer of the petitioners. it was submitted by him that law is settled on the point that at the initial stage this court is not required to interfere, that too, while exercising power under section 482 of the code of criminal procedure. it was submitted that whatever the petitioners want to say, they can say at the appropriate stage. this is not the forum for raising all the points. accordingly, he has submitted to reject the present petition.7. smt. indu bala pandey, learned addl.public prosecutor appearing on behalf of the state has supported the stand taken by the learned senior counsel appearing on behalf of opp.party no.2.8. besides hearing learned counsel for the parties, i have perused the materials available on record including the complaint petition (annexure-1), the f.i.r. in which the complainant was made accused (annexure-2) as well as the impugned order. it is not in dispute that at the initial stage this court should refrain from interfering in a criminal case that too while exercising power under section 482 of the code of criminal procedure, but at the same time if the fact is brought to the notice of the court that criminal proceeding has been initiated only with a view to create a defence in a criminal case and also with malice, certainly this court is not devoid of jurisdiction in interfering in such situation. in the present case, even the learned counsel appearing on behalf of opp.party no.2 has not disputed that the complaint was not accused in a case, in which the daughter of petitioner nos.1 and 2 was murdered. he also does not dispute that in the said f.i.r., after investigation the police submitted chargesheet against him as well as his other family members. it is also not in dispute that the complaint petition was not sent through the jail authority, but it was filed through an advocate, while the complainant was inside the jail.9. in the present case, the complainant was made f.i.r. named accused for the offence under section 304 b and other allied sections of the indian penal code in a case, which was registered on 28.11.1996 itself and thereafter, complainant surrendered on 3rd december, 1996. at the time of surrendering, he did not complain that any occurrence, as alleged in the complaint petition, had taken place at the house of the complainant. after surrender, he was remanded to the judicial custody. thereafter, repeatedly on the date fixed in the case, in which he was made accused, he was produced before the learned magistrate, but no such complaint was made and after lapse of about three months from the date of alleged occurrence, the present complaint was sent by the complainant from the jail. it is true that the statement of the complainant was recorded on s.a. by the learned magistrate and altogether five witnesses were examined on his behalf, which(sic) supported the allegation made in the complaint petition. however, out of the witnesses, who were examined as enquiry witnesses, three were named as accused in araria p. s. case no.427 of 1996 . it is not in dispute that the allegations made in the complaint were corroborated by the witnesses, but fact remains that the present complaint was filed by a person, who was made accused in a serious allegation,i.e. dowry death. on the basis of materials available on record, this court is of the opinion that the present complaint was filed by the complainant maliciously that too with a view to create a defence in his favour in araria p.s. case no.427 of 1996, in which the police after investigation submitted chargesheet against him.10. considering the facts and circumstances of the case, the court is of the view that if a criminal proceeding has been initiated only with malice, the court is not devoid of jurisdiction in interfering even at the initial stage of cognizance. accordingly, the court is satisfied that it was a malicious prosecution and ,as such, it is necessary to interfere with the order of cognizance.11. accordingly, the order of cognizance dated 24.7.1999 is hereby set aside and the petition stands allowed.

Judgment:
1. Fourteen petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 24.7.1999 passed by the learned Chief Judicial Magistrate, Araria in Complaint Case No.C 165 of 1997. By the said order, the learned Magistrate has taken cognizance of the offences under Sections 386, 452,323,147,148 and 504 of the Indian Penal Code.

2. Short fact of the case is that Opp.Party no.2 , who is none else but the father-in-law of daughter of petitioner nos.1 and 2, who was killed in a case relating to Araria P.S. Case No.427 of 1996 filed a complaint case vide Complaint Case No.165 of 1997 in the court of the learned Chief Judicial Magistrate, Araria. The complainant disclosed that on 25.11.1996, he had come to Patna for his treatment and in the morning of 27.11.1996 he got information that his daughter-in-law died in Araria Hospital due to diarrhoea, which was a natural death. It was further disclosed that the accused persons on 27.11.1996 after getting information of death of the daughter-in law of the complainant rushed to the house of the complainant and thereafter they assaulted the wife, son, daughter and other family members of the complainant. It has also been disclosed that the accused persons had come along with the police officers and in presence of the police officer; the petitioners looted the house-hold articles. In the complaint petition, description of each and every article has been given in detail. After filing of the complaint petition, the complainant was examined on S.A. and in support of the complaint petition, altogether five witnesses were examined as enquiry witnesses, who supported the allegations made in the complaint petition and thereafter by the impugned order, the learned Magistrate has passed the order of cognizance for the offences under Sections 386,452,323,147,148 and 504 of the Indian Penal Code.

3. Aggrieved with the order of cognizance, all the aforesaid petitioners approached this Court by filing the present petition. This petition was admitted on 25.2.2000. While admitting the case for hearing , this Court had directed that pending disposal , further proceeding in Complaint Case No.C-165/97 pending in the court of C.J.M., Araria shall remain stayed.

4. Sri Pankaj Kumar Sinha, learned counsel appearing on behalf of the petitioners, while pressing the present petition, at the very out set has submitted that the present complaint petition was initiated against the petitioners in relation of a case, in which the complainant was made accused. It was submitted that the daughter of petitioner nos.1 and 2 was married to the son of the complainant, namely, Sanjeev Kumar @ Bablu according to Hindu rites and rituals on 9th June, 1995. At the time of 'Dooragaman', the son-in-law of petitioner no.1 was adequately given house- hold articles as well as cash amount of Rs.1.5 lacs. Learned counsel for the petitioners, while referring to Annexure-2 to the present petition, which is typed copy of the F.I.R. i.e. Araria P.S. Case No.427 of 1996, submits that the daughter of petitioner no.1 was killed by her husband, father-in-law, mother-in-law and other family members of her in-laws. It was disclosed in the F.I.R. that the marriage was solemnized in the year 1995 and thereafter adequately the son-in-law was paid by petitioner nos.1 and 2. In the F.I.R., it has been disclosed that payment was made even through Bank Draft. Initially after Dooragaman , the daughter of petitioner nos.1 and 2 lived with peace at her in-laws house but immediately thereafter, the family members of her in-laws started to put pressure to get money from her parents. It was disclosed that accused persons, i.e. complainant of the present case and other in-laws family of the daughter- in-law of petitioner nos.1 and 2 were putting pressure for purchasing a vehicle (Jeep) in the name of the husband of their daughter. Subsequently due to non-fulfilment the daughter of petitioner nos.1 and 2 was sent back to her parents' house and again after getting sufficient money , she was taken by her in-laws. It was disclosed that the daughter of petitioner nos.1 and 2 was repeatedly tortured and finally she was killed by the accused persons and with a view to conceal the murder , the family members of in- laws of daughter of petitioner nos.1 and 2 disposed of the dead body at a distant place . On 28.11.1996 at 11.00 A.M. at the house of Opp.Party no.2 , fardbeyan of Opp.Party no.1 was recorded and thereafter, on the basis of fardbeyan , an F.I.R. vide Araria Pa.S. Case No. 427 of 1996 was registered for the offences under Sections 304 B, 120B, 201/34 of the Indian Penal Code. In the F.I.R., the complainant was arrayed as accused no.1 and his wife Kiran Mishra , his son Sanjeev Kumar @ Bablu ( husband of the deceased) , Kislay Kumar ( brother of Sanjeev Kumar) and other four persons were also named as accused.

5. Learned counsel for the petitioners submits that after committing the murder, the complainant evaded his arrest and subsequently on 3rd December, 1996 he voluntarily surrendered in the court and prayed that he may be taken into judicial custody and he was remanded to the judicial custody. It was further argued that, while he was in custody, after lapse of several days in a calculated manner, a complaint petition was sent by Opp.Party no.2 to the court of the learned Chief Judicial Magistrate, Araria through his Advocate. Learned counsel for the petitioners submits that the complaint petition was not sent through the Jail Authority, though the complainant was inside the jail. In this case, lower court record was called for and the same has been received. I myself have perused the record. From the record it appears that there is no endorsement of the Jail Authority in the complaint petition. The complaint petition is dated 19.3.1997. It was argued that had the occurrence, as alleged in the complaint petition taken place, there was no difficulty in informing the learned Magistrate while the complainant had surrendered before him on 3.12.1997. It was submitted that the present complaint petition was filed maliciously and on this ground, the order of cognizance is liable to be set aside.

6. Sri Chandra Shekher, learned Senior Counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioners. It was submitted by him that law is settled on the point that at the initial stage this Court is not required to interfere, that too, while exercising power under Section 482 of the Code of Criminal Procedure. It was submitted that whatever the petitioners want to say, they can say at the appropriate stage. This is not the forum for raising all the points. Accordingly, he has submitted to reject the present petition.

7. Smt. Indu Bala Pandey, learned Addl.Public Prosecutor appearing on behalf of the State has supported the stand taken by the learned Senior Counsel appearing on behalf of Opp.Party no.2.

8. Besides hearing learned counsel for the parties, I have perused the materials available on record including the complaint petition (Annexure-1), the F.I.R. in which the complainant was made accused (Annexure-2) as well as the impugned order. It is not in dispute that at the initial stage this Court should refrain from interfering in a criminal case that too while exercising power under Section 482 of the Code of Criminal Procedure, but at the same time if the fact is brought to the notice of the Court that criminal proceeding has been initiated only with a view to create a defence in a criminal case and also with malice, certainly this Court is not devoid of jurisdiction in interfering in such situation. In the present case, even the learned counsel appearing on behalf of Opp.Party no.2 has not disputed that the complaint was not accused in a case, in which the daughter of petitioner nos.1 and 2 was murdered. He also does not dispute that in the said F.I.R., after investigation the police submitted chargesheet against him as well as his other family members. It is also not in dispute that the complaint petition was not sent through the jail authority, but it was filed through an Advocate, while the complainant was inside the jail.

9. In the present case, the complainant was made F.I.R. named accused for the offence under Section 304 B and other allied Sections of the Indian Penal Code in a case, which was registered on 28.11.1996 itself and thereafter, complainant surrendered on 3rd December, 1996. At the time of surrendering, he did not complain that any occurrence, as alleged in the complaint petition, had taken place at the house of the complainant. After surrender, he was remanded to the judicial custody. Thereafter, repeatedly on the date fixed in the case, in which he was made accused, he was produced before the learned Magistrate, but no such complaint was made and after lapse of about three months from the date of alleged occurrence, the present complaint was sent by the complainant from the jail. It is true that the statement of the complainant was recorded on S.A. by the learned Magistrate and altogether five witnesses were examined on his behalf, which(SIC) supported the allegation made in the complaint petition. However, out of the witnesses, who were examined as enquiry witnesses, three were named as accused in Araria P. S. Case No.427 of 1996 . It is not in dispute that the allegations made in the complaint were corroborated by the witnesses, but fact remains that the present complaint was filed by a person, who was made accused in a serious allegation,i.e. Dowry death. On the basis of materials available on record, this Court is of the opinion that the present complaint was filed by the complainant maliciously that too with a view to create a defence in his favour in Araria P.S. Case No.427 of 1996, in which the police after investigation submitted chargesheet against him.

10. Considering the facts and circumstances of the case, the Court is of the view that if a criminal proceeding has been initiated only with malice, the Court is not devoid of jurisdiction in interfering even at the initial stage of cognizance. Accordingly, the Court is satisfied that it was a malicious prosecution and ,as such, it is necessary to interfere with the order of cognizance.

11. Accordingly, the order of cognizance dated 24.7.1999 is hereby set aside and the petition stands allowed.