Mahmud Ali. Vs. State of Bihar, and anr. - Court Judgment

Excerpt:
[markandey katju ; gyan sudha misra, jj.] - constitution of india - article 343(1) - official language of the union -- it is these rules which have been struck down by the high court. it may be mentioned that the respondents herein were never regularly promoted as hindi officer at any point of time either under the 1984 rules or recruitment rules, 2002. 12. rules under article 309 can be changed even during the subsistence of the old rules. 13. it is well settled that the legislature can legislate retrospectively vide m.p.v. sundararamier & co. vs. state of andhra pradesh, air 1958 sc 468, j.k. jute mills vs. state of uttar pradesh, air 1961 sc 1534, jadao bahuji vs. municipal committee, air 1961 sc 1486, government of andhra pradesh vs. hindustan machine tools ltd., air 1975 sc 2037.....1. the sole petitioner, while invoking inherent jurisdiction of this court under section 482 of the code of criminal procedure, has prayed for quashing of an order dated 9.7.2003 passed by sri durgesh mani tripathi, judicial magistrate, 2nd class, gopalganj in complaint case no.626 of 2003/ tr.no.466 of 2003. by the said order, the learned magistrate after being prima facie satisfied that offences under sections 323 , 379/34 of the indian penal code was made out had directed for issuance of process against the accused persons including the petitioner.2. short fact of the case is that opp.party no.2 filed a complaint in the court of learned chief judicial magistrate, gopalganj on 21.4.2003, which was numbered as complaint case no. 626 of 2003 against two named accused persons including the.....

Judgment:
1. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 9.7.2003 passed by Sri Durgesh Mani Tripathi, Judicial Magistrate, 2nd Class, Gopalganj in Complaint Case No.626 of 2003/ Tr.No.466 of 2003. By the said order, the learned Magistrate after being prima facie satisfied that offences under Sections 323 , 379/34 of the Indian Penal Code was made out had directed for issuance of process against the accused persons including the petitioner.

2. Short fact of the case is that Opp.Party no.2 filed a complaint in the court of learned Chief Judicial Magistrate, Gopalganj on 21.4.2003, which was numbered as Complaint Case No. 626 of 2003 against two named accused persons including the petitioner and three unknown persons. It was alleged in the complaint petition that the complainant was a temporary employee in M/S Sasamusa Sugar Mill. While he was on duty, he was called by a Peon of the petitioner .It has been asserted that petitioner was owner of the Sasamusa Sugar Mill. On being summoned by petitioner through the Peon, the complainant went to the chamber of the petitioner and thereafter the petitioner asked accused No.2 and others, who were in chamber, to assault the complainant. While directing other accused persons to assault, it was alleged that the petitioner was saying that this complainant had filed a case in Labour Court, from where notices were issued to the petitioner. It was further alleged in the complaint petition that during the occurrence, accused persons took Rs.400/- from the pocket of the complainant and also his wrist watch for an amount of Rs.1000/- was forcibly taken by accused nos.2 and three other accused persons. On the aforesaid allegation, complaint was filed. The learned Chief Judicial Magistrate under Section 192 (1) of the Code of Criminal Procedure transferred the complaint to the court of Sri Durgesh Mani Tripathi , Judicial Magistrate, 2nd Class, Gopalganj. Subsequently, after examining some witnesses and conducting enquiry, the learned Magistrate by its order dated 9.7.2003 took cognizance of the offences under Sections 323, 379/34 of the Indian Penal Code and directed for issuance of process against accused persons including the petitioner.

3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition, which was finally admitted on 20.07.2004. While admitting, it was directed that interim order passed on 11.5.2004 shall continue till disposal of this application. The order of stay is still continuing.

4. Sri Rama Kant Sharma learned Senior Counsel appearing on behalf of the petitioner at the very outset has submitted that though the complaint was filed against the petitioner and others, the complainant had not even given the correct name, parentage and designation of the petitioner. It has been submitted that the petitioner was, at the relevant time, the Dy. Managing Director of M/S Sasamusa Sugar Mill and on earlier occasion, i.e. in the year 1997 on the basis of petition filed by the complainant, notice was received by the petitioner which was issued from the office of the Labour Superintendent, Gopalganj. Learned Senior Counsel for the petitioner has referred to Annexures 3 and 4 to the petition, i.e. a copy of notice issued from the office of the Labour Superintendent and reply given by the Factory Manager respectively. It was submitted that the complainant was a seasonal temporary employee in the Factory and he was putting pressure on the petitioner for his regularization and for that purpose he had also filed a petition before the Labour Superintendent, wherein a proper reply was given by the factory Manager indicating therein that since the complainant was a temporary Mazdoor, it was difficult to make him as seasonal permanent employee. It has been submitted that had there been any grudge in respect of issuance of notice from the office of the Labour Superintendent, Gopalganj, the occurrence would have been taken place much earlier and not at such a belated stage. It has been submitted that reply was submitted before the Labour Superintendent in the month of May, 1998. However, in the present complaint, it has been alleged by the complainant which was filed in the year 2003 that he was abused and assaulted on the allegation of approaching the Labour Court and for issuing notice to the petitioner by the office of the Labour Superintendent. On the strength of the averment made in the complaint petition itself, it has been submitted that the complaint was filed maliciously and with oblique motive. It was submitted that the complaint was filed with an object to put pressure on the petitioner, so that the complainant may be made permanent seasonal employee of the factory. It has been alternatively argued by Sri Rama Kant Sharma, learned Senior Counsel appearing on behalf of the petitioner that even if for the time being it is assumed that there is some substance in the complaint petition, there is no specific allegation for commission of any overt act against the petitioner. Whatever allegation was made was made against accused nos.2 and 3 unknown accused persons. Accordingly, it has been prayed that initiation of the proceeding as well as the order of cognizance is liable to be set aside on the ground of malicious prosecution.

5. Sri Shubh Narain Singh, learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioner. Learned counsel appearing on behalf of Opp.Party no.2 has also referred to the averment made in the counter affidavit, which was filed on 5.7.2004. It has been submitted by the learned counsel appearing on behalf of Opp.Party no.2 that the petitioner has approached this Court, while invoking its inherent jurisdiction, which is to be exercised in exceptional cases. It has been submitted that the grounds, which have been taken by the learned counsel for the petitioner can well be examined by the court below, where the case is pending. The order of cognizance may not be interfered with at the initial stage. Accordingly, it has been prayed to reject the present petition.

6. Sri Matloob Rab, learned Addl.Public Prosecutor appearing on behalf of the State has supported the stand taken by the learned counsel appearing on behalf of Opp.Party no.2.

7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. It is true that while hearing a petition under Section 482 of the Code of Criminal Procedure, it is not required to examine documents enclosed with the petition, but in view of peculiar facts and circumstances of the present case, particularly the averments made in the complaint petition, I have perused Annexures-3 and 4 of the present petition, which are the notice issued by the Labour Superintendent and reply given by the Factory Manager. Regarding veracity of Annexures-3, 3/A and 4 of the petition, the learned counsel appearing on behalf of Opp.Party no.2 has not taken any stand. Meaning thereby it can be assumed that he has not controverted the veracity of Annexures-3, 3/1 and 4 of the present petition. Keeping in view the fact that the allegation made in the complaint petition was mainly based on the ground that the complainant had approached the Labour Court and thereafter notice was issued to the petitioner. The reply given by the Factory Manager of the petitioner, i.e. Annexure-4 to the petition has got much relevance. This indicates that the reply given on behalf of the factory of the petitioner makes it clear that much prior to the filing of the complaint petition in the year 1988 itself reply was given indicating therein that the complainant was a temporary seasonal Mazdoor and it was not possible to make him permanent seasonal employee. Had there been any reason for grudge creating situation for assaulting the complainant, it is difficult to comprehend the reason for committing such occurrence after about five year from the date of giving reply or receipt of the notice from the office of the Labour Superintendent, Gopalganj. Moreover, the allegation made in the complaint petition appears to be not probable .The petitioner was Dy. Managing Director of Sasamusa Sugar Mill, where earlier the complainant was a temporary seasonal employee.

8. In view of the averment made in the complaint petition coupled with the other facts as indicated above, the Court is satisfied that the present complaint was filed maliciously and on the ground of malicious prosecution, it is necessary to interfere with the impugned order. Accordingly, the order of cognizance dated 9.7.2003 passed by Sri Durgesh Mani Tripathi, Judicial Magistrate, 2nd Class, Gopalganj in complaint Case No.626 of 2003/ Tr.No.466 of 2003 so far as petitioner is concerned, is hereby set aside and the petition stands allowed.