1 CRIMINAL MISCELLANEOUS No. 31916 OF 2000 WITH CRIMINAL MISCELLANEOUS NO. 33761 OF 2000 ---- In the matter of an applications under Section 482 of the Code of Criminal Procedure,1973. ------ VINAY KUMAR SINGH SON OF LATE SHEO NANDAN PRASAD SINGHOF VILLAGE POLIYAR, P.S. SHADAI BUJURG, DISTRICT VAISHALI AT PRESENT DISTRICT MANAGER-CUM-CERTIFICATE OFFICER OF PATNA, BIHAR STATE CO-OPERATIVE LAND DEVELOPMENT BANK ……. ……… PETITIONER IN Cr. Misc. No.31916/2000 VIJAY NARAYAN JHA, SON OF LATE INDRA NARAIN JHA OF VILLAGE KAKROUL, P.S. DISTRICT MADHUBANI AT PRESENTFIELD OFFICER INCHARGE FATUHA BLOCK IN PATNA BRANCH OF BIHAR STATE CO-OPERATIVE LAND DEVELOPMENT BANK, PATNA. ….... ….... PETITIONER IN Cr.Misc. No.33761/2000 Versus 1.THE STATE OF BIHAR 2.BAIJNATH PRASAD SON OF LATE NANDAN BHAGAT, RESIDENT OF VILLAGE VIKRAMPUR, P.S. FATUAH, DISTRICT PATNA. ….... …..... OPP.PARTIES IN both the cases ------- For the Petitioners : M/S. Umeshwar Pd. Singh and Lalit Kumar Singh,Advocates (in both the cases) For the State : Mrs. Indu Bala Pandey, A.P.P. (in Cr.Misc.No.31916/2000) For the State : Mr. Ajay Mishra, A.P.P. (in Cr. Misc. No.33761/2000) -------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR -------- Rakesh Kumar,J. In both the cases order dated 22.07.2000 passed by Sri Dinesh Kumar Singh, Judicial Magistrate, Ist Class, Patna in compliant Case No. 1656 (C) of 1999 is under challenge and as such both the petitions were heard together and are being disposed of by this common 2 judgment. 2. Short fact of the case is that opposite party no.2, Baijnath Prasad, filed a complaint in the court of Chief Judicial Magistrate, Patna which was numbered as Complaint Case no. 1656 (C) of 1999/Tr.No.1105 of 1999 alleging therein that Vinay Kumar Singh, District Manager-cum-Certificate Officer and Vijay Narayan Jha Field officer-cum-Incharge Fatuha Branch, Bihar State Co-operative Land Development Bank, Patna (hereinafter referred to as “the Bank”) had committed various offences under Sections 120B, 342,384, 426 and 504 of the Indian Penal Code. It was disclosed in the complaint petition that brother of the complainant Sheo Nath Prasad had earlier taken loan from the Bank in the year 1974 for purchasing a tractor. After purchasing the tractor, installment of loan was not repaid and thereafter the tractor in question was seized and confiscated and it was sold on auction sale. Even after auction sale entire loan amount could not be recovered and as such a certificate proceeding Vide Certificate Case No. 4 of 1982-83 was initiated against the brother of the complainant. The said proceeding continued. However, during pendency of the said certificate case, the brother of the complainant died in the month of January, 1992 leaving behind him, three sons and wife. It was alleged in the complaint petition that the complainant was an employee of Indian Railways and he superannuated from service on 30.6.1998. It was alleged that on 17.5.1999 both the petitioners visited the village of the complainant and persuaded him to accompany them to the office of the petitioners at Kankarbagh, Patna and thereafter the complainant was 3 coerced to deposit the loan amount which was granted to the brother of the complainant. Since loan amount was not paid, the complainant was forwarded to jail and his son was coerced to deposit the loan amount and only thereafter the complainant could be released from the custody on 28.5.1999. It was alleged by the complainant that the complainant had got no connection with the certificate case and even though he was illegally detained and forced to deposit some loan amount. After filing the complaint the learned Magistrate conducted an enquiry and by the impugned order i.e. order dated 22.7.2000 the learned Magistrate took cognizance of the offence under Section 342 of the Indian Penal Code. 3. Aggrieved with the order of cognizance, both the petitioners by filing two separate petitions approached this court by invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. 4. On 15.3.2002 in Cr.Misc.No. 33761 of 2000 this Court directed for issuance of notice to opposite party no.2 and also directed that till further orders, proceedings in Complaint Case No. 1656 (C) of 1999 pending in the court of Sri Dinesh Kumar Singh, Judicial Magistrate, Ist Class, Patna or his successor court shall remain stayed. The court also noticed that opposite party no.2 in both the cases ( i.e. Cr.Misc. No.33761/2000 and Cr.Misc. No.31916/2000) was one and same was represented by Sri Sudarshan Sharma, learned Advocate and as such no notice was required to be issued to him. Similarly in Cr.Misc.No.31916 of 2000 notice was directed to be issued to opposite party no.2 and stay order was also granted by order dated 15.3.2002. 4 Cr.Misc.No. 33761 of 2000 was admitted on 4.7.2003. Subsequently on 30.8.2010 when the matter was taken up Mr.Sudharshan Sharma, learned advocate informed the court that due to mistake vakalatnama was filed by him on behalf of opposite party no.2 and sought permission to withdraw the said vakalanama from the present case and the prayer was allowed. In the order dated 30.8.2010 instead of Sri Sudarshan Sharma, the name was incorrectly typed as Mr. Sudarshan Singh which may be read as Mr.Sudarshan Sharma in the order dated 30.8.2010. 5. Mr.Umeshwar Pd. Singh, learned counsel appearing for the petitioners while challenging the order of cognizance has submitted that the learned Magistrate while taking cognizance has completely failed to appreciate that the petitioner Vijay Kumar Singh (Cr.Misc.No.31916 of 2000) was functioning and discharging the duty of Certificate Officer and as per Section 66 of the Bihar and Orissa Public Demands Recovery Act, the petitioner was protected and no prosecution was required to be initiated in relation to his work relating to discharge of his duty in a certificate case as Certificate Officer. 6. Learned counsel for the petitioners in both the case has argued that as per Rule 53 of the Bihar and Orrisa Public Demands Recovery Act, the petitioner Vinay Kumar Singh (Cr.Misc.No. 31916 of 2000) was fully competent to commit the complainant to civil prison and as such he has rightly passed the order whereby the complainant was sent to civil prison. It was submitted that all the procedures were followed by the petitioner and as such in any event the learned 5 Magistrate was not authorized to proceed with the complaint petition. 7. So far as the petitioner Vijay Narayan Jha in Cr.Misc.No. 33761 of 2000 is concerned, it was submitted that he was a Field Officer and was also discharging his official duty and as such the learned Magistrate has not passed order of cognizance in accordance with law and orders of cognizance in both the petitions are liable to be set aside. Learned counsel for the petitioners has agued that in the certificate proceeding entire procedures were followed and only thereafter the complainant was sent to civil prison. Subsequently, son of the complainant has deposited substantial certificate amount and thereafter the complainant could be released from the prison. Accordingly, it has been prayed to set aside the order of cognizance. 8. I have also heard Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State. She has opposed the prayer of the petitioners. 9. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. From the complaint petition, it is evident that the complainant had not at all taken any loan from the Bank in question. In the complaint petition, it has been categorically stated that loanee i.e. Sheo Nath Prasad died during the pendency of the certificate proceeding leaving behind him, his legal heirs i.e. three sons and his wife. Under the circumstances brother was not required to be proceeded in the certificate proceeding. Learned counsel for the petitioners at the time of hearing, has referred to several documents which have been enclosed with the petition in support of his 6 argument. This Court is of the view that such document cannot be looked into at this stage that too while hearing a petition under section 482 of the Code of Criminal Procedure. Those things are required to be appreciated by the court concerned at appropriate stage. So far as Rule- 53 of the Bihar and Orrisa Demands Recovery Act is concerned, it is appropriate to quote the same, which is as follows : “53. Discretionary power to permit certificate debtor to show cause against detention in prison:- (1) The Certificate Officer may, before issuing a warrant for the certificate- debtor, issue a notice calling upon him to appear before the Certificate Officer, on a day to be specified in the notice, and show cause why he should not be committed to the civil prison. (2) Where appearance is not made in obedience to the notice the Certificate Officer may issue a warrant for the arrest of the certificate- debtor.” 10. On perusal of the aforesaid rule, it is evident that only certificate debtor can be arrested in a certificate proceeding. In the present case, the court failed to understand as to under what circumstances, the complainant was arrested and sent to jail and how the son of the complainant was compelled to pay substantial amount of the certificate case. However, it would not be appropriate for this Court to 7 Patna High Court, The 3rd September,2010 Md.S./N.A.F.R. make any comment on the aforesaid fact. The court is of the opinion that those things cannot be looked into by this Court and liberty is granted to the petitioners to raise all the points at an appropriate stage before the court below. 11. Accordingly, both the petitions stand rejected. 12. In view of rejection of both the petitions, interim order of stay granted by this Court stands automatically vacated. 13. Let a copy of this order be sent to the court below forthwith. ( Rakesh Kumar, J.)