CRIMINAL MISCELLANEOUS No.22077 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure ----------- B. L. BAISHYANTRI @ BHAGWAT LAL BAISHYANTRI, Son of Late Khushilal Baishyantri, resident of Forbesganj, Ward No.6, P.O. Forbesganj, District-Araria, formerly posted as Secretary, Bihar School Examination Board,Patna-800017 and at present posted as Additional Director in the Department of Secondry, Primary and Adult Education, Govt. of Bihar,at Ranchi --------------- Petitioner Versus 1 THE STATE OF BIHAR 2. Shri Ramji Prasad, son of Late Ram Krishn Prasad, resident of Bhabhua Town, Ward No.3, Police Station-Bhabhua Town, District-Kaimur ---------------------- Opp.Parties. -------------- For the petitioner: Sri Harish Kumar, Advocate For the State: Smt. Indu Bala Pandey, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, who was at the relevant time Secretary of the Bihar School Examination Board, Patna, has approached this Court , while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 24.07.1997 passed by Sri U.S. Dwedi , Judicial Magistrate, Bhabhua in Complaint Case No.80 of 1997, Tr.No.451 of 1997 . By the said order, the learned Magistrate has taken cognizance of offences under Sections 165A, 166 and 167 of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2, who was by profession as Advocate and practicing at Bhabhua, filed a complaint in the court of the learned Chief Judicial Magistrate, Bhabhua on an allegation that in the Matriculation Certificates of his two sons, date of birth was 2 incorrectly mentioned. Subsequently, on the petition filed by Opp.Party no.2, the Headmaster of the concerned School had requested the Bihar School Examination Board to make necessary correct. Even though the request was made by the School authority, no step was taken to make correction. Thereafter, the complainant approached some employees of the Board, whereupon an official of the Board demanded bribe for making correction in the Certificates. It was alleged that the complainant thereafter contacted the petitioner, who was Secretary, but the petitioner also asked him to fulfil the demand of the employees. On the aforesaid allegation, the complaint petition was filed and after conducting enquiry, the learned Magistrate by its order dated 24.7.1997 passed the order of cognizance of offences under Sections 165A, 166 and 167 of the Indian Penal Code. 3. Sri Harish Kumar, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance, submits that the order of cognizance is liable to be set aside firstly on the ground of lack of territorial jurisdiction and secondly there were no material on record suggesting commission of any offence by the petitioner. It was further submitted that the order of cognizance is liable to be set aside on the ground that the order was passed without application of mind. It was submitted that despite the fact that the provisions contained in Sections 161 to 165A of the Indian Penal Code was repealed long back, the learned Magistrate has taken cognizance even under Section 165 A of the Indian Penal Code. This suggests that the order of cognizance was passed without application of mind. It was further submitted that immediately after noticing that the error was committed in the Certificates, the petitioner took steps and thereafter correction was made in the Certificates and the concerned School was also 3 intimated to this effect. Learned counsel for the petitioner has referred to paragraph 20 to 22 of the petition, wherein it has been described regarding the steps taken by the petitioner in the light of making correction in the Certificates. It was further submitted that due to human error some mistakes had occurred in the Certificates. However, the same has been corrected at subsequent stage. Learned counsel for the petitioner further submits that the petitioner joined as Secretary in the Bihar School Examination Board on 6.9.1996 and he remained there till 1.4.1998. It was submitted that two sons of the complainant had appeared in the Matriculation Examination in 1985 and 1993 respectively and, as such, while Certificates were issued, the petitioner was not at all posted in the Board. On the aforesaid grounds, it has been prayed to quash the order of cognizance. 4. I have also heard Smt. Indu Bala Pandey, Addl.Public Prosecutor appearing on behalf of the State, who has opposed the prayer of the petitioner. At the time of hearing none appeared on behalf of Opp.Party no.2 5. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on record. In this case, learned counsel for the petitioner by filing supplementary affidavit has brought on record that even on previous occasion number of litigation were initiated by Opp.Party no.2 against officials of the Board as well as the Intermediate Council. In the complaint petition, even for the time being if it is assumed that offence was committed, the entire transaction had taken place in the office of the Bihar School Examination Board,Patna . To the reasons best known to Opp.Party no.2 instead of filing complaint before Patna he had preferred to file a complaint before the Court of the learned 4 Chief Judicial Magistrate, Bhabhua . However, this Court is not recording any finding regarding territorial jurisdiction, but in the facts and circumstances of the present case, particularly the order of cognizance taken under Section 165 A of the Indian Penal Code, the Court is of the opinion that the order of cognizance was passed without application of mind and, as such, it is necessary to interfere with the order of cognizance. Moreover, keeping in view the fact that the alleged occurrence had taken in the year 1997 and the matter remained pending for such a long time, it is desirable to interfere with the order of cognizance. Accordingly, the order of cognizance dated 24.7.1997 passed by Shri U.S. Dwedi, Judicial Magistrate , Bhabhua in Complaint Case No.80 of 1997, Tr.No.451 of 1997 so far as petitioner is conrerned is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 31st August,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)