IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.45166 of 2011 ====================================================== 1. Shiva Bhushan Thakur S/O Chandra Bhushan Thakur At And P.O - Barha, P.S.- Benipatti, District- Madhubani, Presently Posted As Secretary To Commissioner Saran Division, Chapra. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Hon'Ble High Of Judicature At Patna Through The Registrar General .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajesh Kumar, Adv. For the High Court : Mr. Chittaranjan Sinha, Sr. Adv. For Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 2 10-04-2012 Heard learned counsel for the petitioner, for the High Court and for the State. In this case, petitioner is challenging the order dated 11th September 2008 passed by learned Chief Judicial Magistrate, Patna in Complaint CaseNo. 1673(C-2) of 2008 whereby he has taken cognizance for offences u/s 177, 181, 182, 193, and 199 IPC. From the record it appears that this complaint case was filed by the learned Joint Registrar(Judl.) of this Court in view of order passed in LPA No. 46 of 2008 wherein this Court vide order dated 7th August 2008 passed the following order: “The false affidavit by the Joint Registrar (Headquarters), Co-operative Societies, Bihar, Patna is a serious matter. A senior government officer like him is expected to state truth and nothing but truth in the affidavit, Patna High Court Cr.Misc. No.45166 of 2011 (2) 2 / 7 2 but he did otherwise. The practice of filing false affidavit by the Government Officer/official not only requires to be deprecated but also for such perjury, the officer/official needs to be prosecuted. We, accordingly, direct the Joint Registrar(Judicial) of this Court to file a complaint in the competent court of criminal jurisdiction against Shiva Bhushan Thakur, Joint Registrar (Headquarters), Co-operative Societies, Bihar, Patna, having filed a false affidavit before this Court to-day which is marked „X‟ for identification purpose. The criminal complaint shall be filed against Shiva Bhushan Thakur as expeditiously as possible and in no case later than one month from to-day”. On that basis the case was lodged against the petitioner and court below took cognizance accordingly. Petitioner filed a Review application vide Civil Review 203 of 2008 where this Court has considered the case of the petitioner and held as follows: “It thus becomes clear that when this Court had assumed that the petitioner was already promoted on the post of Head Assistant on 7.7.2004 in Darbhanga Division no such post had remained in existence and to that extent the working arrangement of senior most Assistant for functioning as a Head Clerk (not Head Assistant) could not have led to an automatic assumption of the petitioner that he had already been promoted on the post of Head Assistant so as to be given his posting only as a Head Assistant in future. Patna High Court Cr.Misc. No.45166 of 2011 (2) 3 / 7 3 Mr. Pashupati Prasad Sinha learned Counsel for the writ petitioner on being asked by this Court to produce any order of promotion of the writ petitioner to the post of Head Assistant had frankly and fairly conceded that there was no such order in favour of the petitioner save and except the order of his posting of the petitioner dated 7.7.2004. The said order had already been extracted above and would go to show that when one Lalbabu Rai holding the post of Senior Selection Grade Assistant was transferred from the office of the Joint Registrar, Co-operative Society, Darbhanga Division, the petitioner working as a Clerk/ Assistant in that very office on account of being senior most Assistant of that office was posted against the vacancy created by Lalababu Rai to function in capacity of Head Clerk of the office purely by way of working arrangement. Such working arrangement for stream lining and functioning of the office of the Joint Director Co-operative, Darbhanga being a purely fortutions circumstance arising out of transfer of a regular incumbent in no way had clothed the writ petitioner with any right of holding the post of Head Assistant on or after 7.7.2004 specially when the post of Head Assistant shown in the Co-operative Department letter dated 31st October, 1983 had itself not remained in existence on account of compete restructuring of the post in terms of Pay Revision Committee Report and the consequential Government notification dated 8.2.1999 read with Circular dated 23.7.2003. It thus becomes clear that non- existing order dated 31st October, 1983 containing the concept and post of Head Assistant which had already lost its force with effect from 1.1.1996 became somehow the basis either for allowing the case Patna High Court Cr.Misc. No.45166 of 2011 (2) 4 / 7 4 of the writ petitioner by the learned Single Judge by an order dated 28.8.2007 in C.W.J.C. No. 5196 of 2007 or dismissing the resultant appeal, L.P.A. No. 46/2008 filed by the State by an order dated 7.8.2008. It has, therefore, to be held that the supplementary affidavit filed by Shiva Bhushan Thakur, Joint Registrar (H.Qrs.), Co-operative Society, based on the letter of the Co-operative Department No. 476 dated 5.2.1999 laying down the strength of only 55 Assistant for the office of the Joint Registrar, Co-operative Society, Darbhanga having no separate sanctioned post for the post of Head Assistant did not contain any false statement. Though this Court is of the view that such an affidavit could have more happily worded with a clear explanation that the earlier arrangement made by the Co-operative Department as with regard to existence of post of Head Assistant as envisaged in the letter of the Co-operative Department dated 31st October, 1983 had stood discontinued/ abolished w.e.f. 1.1.1996 in view of the subsequent Govt. decision dated 8.2.1999. None-the-less the fact remains that after 1.1.1996 there was no post of Head Assistant in existence for the office of the Joint Registrar, Co- operative Society, Darbhanga and therefore, whatever has been said in the order dated 7.8.2008 in L.P.A.No. 46/2008 as with regard to existence and continuance of post of Head Assistant is definitely based on an apparent error of record. In fact it was never pointed out to this Court by any of the party that there was already an order dated 5.2.1999 of the Co-operative Department restricting strength of Patna High Court Cr.Misc. No.45166 of 2011 (2) 5 / 7 5 Assistant for the office of the Joint Registrar, Co-operative Society, Darbhanga to 55 post of Assistant only without any post of Head Assistant and even the subsequent Govt. notification dated 23.7.2003 as with regard to identification of need based post as a follow up measure of the Government decision dated 8.2.1999 was also not brought on record. None the less as there was a clear averment in the counter affidavit filed in the writ petition C.W.J.C. No. 5196 of 2009 as also in the supplementary affidavit of the L.P.A. No. 46 of 2008 as with regard to abolition of the post of Head Assistant w.e.f. 1.1.1996 and also that the writ petitioner was never promoted on the post of Head Assistant on 7.7.2004, it has to be held the order passed by the learned Single Judge on 28.8.2007 in C.W.J.C. No. 5196 of 2007 and its affirmance in the order dated 7.8.2008 while dismissing L.P.A. no. 46 of 2008, holding existence of the post of Head Assistant and its being filled by promotion of the writ petitioner on 7.7.2004 is based on apparent error of record. Under such circumstances, we have been left with no option but to recall the order dated 7th August, 2008 in L.P.A. No. 46 of 2008 as we are satisfied of there being an apparent error on the face of record. Having thus recalled the order we have to also consider the fate of L.P.A.No. 46/2008 assailing the order of the learned Single Judge in C.W.J.C.No. 5196/2007, whereby and whereunder a direction has been given to the authorities of the Co-operative Department to post the writ petitioner only as a Head Assistant with all consequential monetary benefits. As noted above, there was no Patna High Court Cr.Misc. No.45166 of 2011 (2) 6 / 7 6 post of Head Assistant in existence on or after 1.1.1996 and the working arrangement made by the Joint Registrar of the Co-operative Society, Darbhanga Division in his letter dated 7.7.2004 also did not amount to promotion of the writ petitioner on substantive basis. We have therefore also no hesitation in holding that the petitioner continues to hold only the post of Assistant and as such, he is entitled to the post of Assistant only. Consequently his order of posting as an Assistant passed on 1.3.2007 in the office of the District Co-operative Officer, Samastipur or his being assigned only the post of Assistant as Director by the Additional Director, Co-operative Society, Bihar, Patna in his order dated 26.3.2007 do not suffer from any infirmity. The petitioner being an Assistant and never promoted to the post of Head Assistant/ Head Clerk has to continue as an Assistant till he would earn his promotion in accordance with law. Based on our aforementioned reasonings we allow L.P.A.No. 46/2008 and set aside the order of the learned Single Judge dated 28.8.2007 in C.W.J.C.No. 5196/2007. Accordingly, the writ application C.W.J.C. No. 5196 of 2007 is hereby dismissed. In the result both the review applications are allowed. There would be, however, no order as to costs.” In view of recall of the earlier order passed in L.P.A. No. 46 of 2008, the basis of filing of complaint case remains non-existent and when the basis of the complaint goes, then it will be abuse of process of the court to continue the criminal prosecution which was lodged earlier on the ground of false affidavit filed. As the Court has already held in the review petition that the petitioner has not sworn any false affidavit and as such, order of Patna High Court Cr.Misc. No.45166 of 2011 (2) 7 / 7 7 cognizance vide order dated 11th September 2008 passed in Complaint Case No. 1673(C-2) of 2008 is quashed and the subsequent proceeding arising from the order of cognizance is also quashed. Accordingly, this petition is allowed. Jay/- (Shivaji Pandey, J)