IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.12916 of 2009 1. Shiv Shankar Chaudhary, son of Sri Yogendra Chaudhary, the then Electrical Executive Engineer, Electric Supply Division, Purnea at prsetn residing at Kalyan Sadan, Govindpur Path, Village-Govindpur, P.O.-Laheriasarai, Darbhanga. 2. Ramchandra Chaurasia, son of Lat Jaipal Chaurasia, the then Assistant Electrical Engineer, (Asstt.Suptd.) Electric Supply Division, Purnea at present residing at Ashok Nagar, P.O. & District-Begusarai. 3. Anjani Kumar, son of Sri Binay Kumar Sihna, Bill Clerk, Electric Supply Division, Purnea at present posted as Accountant Assistant at Electric Supply Circle, Dhanbad. Versus 1. The State of Bihar. 2. Shayam Sundar Pandey, son of Sri Bhola Pandey, resident of Mohalla-Saheban Tola, near Education Colony P.S.-Khazanchi Hat, District-Purnea ----------------------- For the Petitioners:- Mr. Chitranjan Sinha, Senior Advocate Mr. Anil Kumar Sinha, Advocate For the opposite party No.2:- Mr. Anant Prasad Srivastava, Advocate For the State :- Mr. Jharkhandi Upadhyay, A.P.P ************** 5 21.12.2011 This application has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) for quashing the entire proceedings arising out of Complaint Case No. 1273 of 2002 including the order dated 07.01.2008 whereunder the learned Chief Judicial Magistrate, Purnea has taken cognizance of the offences punishable under Sections 323 and 341 of the Indian Penal Code against the petitioners. This case has a very interesting run up to the order taking cognizance dated 07.01.2008 which is put to question before this Court. Facts as set out in the complaint filed by opposite party No.2 in brief is that he had gone to the office of Electricity Board, Purnea on 25.10.2002 for rectification of his inflated electricity bill issued in the name of his father, Bhola Pandey. It is the complaint of the 2 opposite party-complainant that upon request being made, the petitioner No.3, a Bill Clerk in the office of the Electricity Board at Purnea demanded illegal gratification. The complainant being aggrieved, approached the petitioner No.1, Executive Engineer and the petitioner No.2, an Officer in the Electricity Board at Purnea who asked him to sit down and directed the petitioner No.3 to rectify the bill. After 15 minutes, the petitioner No.3 came with the rectified bill which was duly signed by the petitioner Nos. 1 and 2 and delivered to the complainant. It is further the complaint of the informant that the bill which originally was for Rs. 423.32 for consumption of 28 units of electricity, was enhanced to Rs. 2624.92. The complainant further complains that on protest being made that he would take the matter to the Court, the petitioner No.1, the Executive Engineer directed the others i.e. petitioner No.2 and the petitioner No.3 to catch hold of the complainant and following which the petitioner No.3 pulled the complainant due to which he fell on the ground and thereafter the accused persons abused him and illegally restrained him in the office and forcibly made him to sign on the blanksheets. The complaint filed on 26.10.2002 before the Chief Judicial Magistrate, Purnea upon transfer and after holding an enquiry under Section 202 of the Code, was dismissed under Section 203 of the Code by the Judicial Magistrate 1st Class, Purnea vide order passed on 05.03.2003 (Annexure-7). The learned Magistrate while dismissing the case has held that neither the complainant nor the sole witness examined by him could level any specific allegation against any of the accused. During the course of enquiry no other witness was examined 3 by the complainant. The Magistrate thus upon consideration of the materials available on record of the proceedings was pleased to dismiss the complaint. On a revision preferred by the complainant giving rise to Cri. Rev. No. 154 of 2003 the learned 2nd Additional Sessions Judge, Purnea by order passed on 16.07.2004 set aside the order dismissing the complaint passed on 05.03.2003 and remitted the matter to the learned court below for passing fresh order after considering the entire materials on record including the issues raised before the revisional Court. The matter being reconsidered upon remand by the revisional Court, the complaint was again dismissed by the Judicial Magistrate by order passed on 28.02.2005. As the revisional Court had directed the court below to examine the issue of sanction also as raised by the petitioners, the learned Court below while examining the matter afresh, again came to a conclusion that there were no positive materials available for issuing summons against the petitioners as no prima facie case was made out and thus again the complaint was dismissed under Section 203 of the Code. The order of dismissal is placed at Annexure-9. The learned court below while dismissing the complaint also held that as no sanction had been accorded for proceeding against the petitioners as required under Section 197 of the Code hence even on this ground the prosecution cannot proceed. The complaint twice having been dismissed by the Judicial Magistrate 1st Class, Purnea, the complainant this time moved this Court through Criminal Revision No. 352 of 2005 and which was disposed of by order dated 10.11.2005 placed at Annexure-10 in view 4 of the efficacious remedy available to the petitioner under Section 398 of the Code before the Sessions Judge, Purnea. Following the liberty granted by this Court, the complainant filed a Cri. Revision application before the Sessions Court, Purnea giving rise to Criminal Revision No. 438 of 2005 and which was disposed of by order dated 20.06.2007 requiring the Judicial Magistrate 1st Class to pass a fresh order on the basis of the materials available on the record. The Chief Judicial Magistrate, Purnea by the impugned order dated 07.01.2008 has proceeded to take cognizance of the offences punishable under Sections 323 and 341 against the petitioners in compliance of the directions issued by the revisional Court and which has been questioned in the present proceedings. Mr. Chitranjan Sinha, learned Senior counsel appearing on behalf of the petitioners submits that apart from the fact that the impugned order taking cognizance is not legally sustainable having been passed on the basis of the same materials which was available on the records of the proceedings and which on earlier occasions were not found sufficient by the Judicial Magistrate 1st Class, Purnea for even issuance of summons to the petitioners, a bare reading of the allegations set out in the complaint petition in the backdrop of the accompanying circumstances would show that it is manifestly attended with mala fides and has been instituted with ulterior motives. Learned counsel submits that initially the father of the complainant namely, Bhola Pandey had filed a complaint before the District Consumer Forum, Purnea raising grievance against inflated bill giving rise to Complaint Case No. 5 of 2002 and which was 5 disposed of by order dated 02.08.2002 placed at Annexure-2 by the District Consumer Forum, Purnea requiring the Board to serve a revised electricity bill to the complainant’s father. Pursuant to the order of the District Consumer Forum a revised bill for an amount of Rs. 22153/- was served on the complainant’s father and which was deposited by him on 3.9.2002, together with reconnection charges. Subsequently, the bill for the month of September, 2002 was issued which inadvertently did not include the D.P.S. charges, tariff, meter rent etc. and which upon production by the complainant was rectified and handed over to him. Learned counsel submitted that as the complainant had come for protesting against a bill for a sum of Rs. 423.32 and which upon rectification was revised to Rs. 2624.92, the complainant peeved by this action of the authorities maliciously instituted the criminal case in question on 26.10.2002. Learned counsel submits that the bill in question was also questioned by the father of the complainant before the District Consumer Forum, Purnea giving rise to Complaint Case No. 64 of 2002 which was instituted subsequently on 10.12.2002 alleging merely highhandedness by the petitioners and nothing else. Learned counsel with reference to paragraph 6 of the complaint petition placed at Annexue-11 of the application submits that the complainant’s father while making reference to the fact that upon receiving the inflated bill for the month of September 2002, his son went for rectification before the petitioners but instead of correcting the same the petitioners served another bill for a higher amount of Rs. 2624.92 and whereby they have committed highhandedness. No 6 allegation of any illegal demand or assault by the petitioners was made by the father of the complainant. Learned counsel thus submits that although the complaint was instituted before the Consumer Forum in relation to the same issue of enhanced bill much after the complaint but, no such allegation has been made by the father of the complainant regarding any offensive act by the petitioners. Learned counsel with reference to the complaint petition placed at Annexure-1 submits that the complainant a practicing advocate, the allegations set out therein are manifestation of his legal knowledge. Mr. Chitranjan Sinha, learned Senior counsel for the petitioner with reference to the earlier orders passed by the trial Court placed at Annexures-7 and 9 respectively submits that on each of the two occasions the learned trial Court dismissed the complaint petition under Section 203 of the Code after examining and reexamining the entire materials that had come during the course of 202 enquiry. He thus submits that the Chief Judicial Magistrate, Purnea by passing the impugned order taking cognizance on 07.01.2008 has committed a serious illegality inasmuch as the order has been passed on the basis of the same materials without holding any further enquiry in the matter. It is further contended that as no sanction has yet been accorded by the State for prosecution of the petitioners in terms of Section 197 of the Code, the continuation of the proceedings against the petitioners in absence of sanction, would be unsustainable. It was contended that undoubtedly the action complained has taken place during the performance of an official duty by the petitioners and thus the allegation emanating from the discharge of an official duty by the 7 petitioners, warrants a sanction in terms of the provisions of Section 197 of the Code. Learned counsel in support of his contentions has relied upon the following judgments:- (i) 2007(1) PLJR 291 (SC) (Prakash Singh Badal & Anr. Versus State of Panjab & Ors.) (ii) 2007(2) PLJR 576 (Pankaj Kumar Vaidya versus The State of Bihar & Anr.) Learned counsel for the petitioner in support of his submissions that complaints like the present one which are manifestly attended with mala fides should be dismissed and the accused may not be subjected to the rigours of trial has relied upon the following judgments:- (i) AIR 1992 SC 604 paragraph 108 (State of Haryana Vs. Bhajanlal) (ii) 2000(2) SCC 636 paragraphs 7 and 8 (G. Sagar Suri and Anr. Versus State of U.P. and Ors.) Learned counsel in support of his contentions submits that the High Court in exercise of power under Section 482 of the Code is not precluded from quashing a proceedings at any stage provided it is satisfied that the continuation thereof would be an abuse of the process of the Court and/or it would cause gross injustice to the accused to subject them to trial, has relied upon the following judgments:- (i) 1978 PLJR 610 para 3 ( Kashi Ram Dhandhania versus Union of India) 8 (ii) 1985 Cri. Law Journal 92 (Orissa) (NOC) Learned counsel in support of his contention that although the defence of the accused cannot be looked into by the Magistrate, at the stage of taking cognizance but the High Court in exercise of power under Section 482 of the Code can well look into the matter in the totality of the circumstances, has relied upon the following judgments of the Supreme Court :- (i) (2005) 1 SCC 568 paragraphs 18 and 29 (State of Orissa versus Debendra Nath Padhi) (ii) 2011 (3) PLJR 100 (SC) paragraphs 21 and 22 ( Harshendra Kumar D. versus Rebatilata Koley Etc.) Mr. A.P. Srivastav, learned counsel appearing on behalf of the complainant- opposite party No.2 while opposing the contentions of the petitioners submits that in the present case the charges have already been framed on 04.04.2009 hence no interference is called for in the order taking cognizance and the petitioners may be directed to face the trial. It is further submitted that at the stage of taking cognizance, all that the learned Magistrate has to do, is to consider the allegation made in the complaint and the materials that have come on the records of the proceedings during the course of enquiry under Section 202 of the Code. It was submitted that the issue of the complainant’s father filing an application before the Consumer Forum are not to be considered by the Magistrate concerned at the stage of taking cognizance. It was contended that regard being had to the allegations made in the complaint, the offence is established under Section 323 and 341 of the Indian Penal Code and thus no indulgence 9 is required on the prayer made by the petitioners. Learned counsel in support of his contentions has relied upon a judgment of the Supreme Court reported in A.I.R. 2011 SC 3652. ( Ajay Kumar Das versus State of Jharkhand & Anr.) Learned counsel for the State opposing the application has voiced similar opinion. I have heard learned counsel appearing on behalf of the parties and have perused the materials on the record. At the outset I have observed that this case has an interesting run up to the order taking cognizance. I say so for the reason that on two earlier occasions the learned Judicial Magistrate 1st Class, Purnea having considered the allegations made in the complaint petition and the evidence coming on record of the proceedings as also the statement on oath of the complainant, had come to a conclusion that there were not sufficient materials to proceed in the matter against the accused persons. The complaint was initially dismissed on 05.03.2003. The complainant filed a revision before the Sessions Court and the matter being remitted for reconsideration by the Judicial Magistrate, the complaint was reconsidered in the light of the directions issued by the Revisional Court and again dismissed on 28.02.2005. The revision before this Court being disposed of for filing appropriate application under Section 398 of the Code before the Sessions Court, all that the Sessions Court did while disposing of the revision of the petitioners was to direct the court below to examine the issue on the basis of materials on record. The Chief Judicial Magistrate, Purnea proceeding mechanically on the directions of the revisional Court as contained in its order dated 10 20.06.2007 proceeded to take cognizance of the offences punishable under Sections 341 and 323 of the Indian Penal Code against the petitioners on the basis of same materials which formed basis for earlier dismissals. Section 398 of the Code empowers this Court or the Court of Sessions to direct the Chief Judicial Magistrate or any Magistrate subordinate to him to make or direct any further enquiry into any complaint which has been dismissed under Section 203 or Section 204(4) or in case of the person who has been discharged of any offence. The said powers so exercised by the Revisional Court is upon examination of any records produced under Section 397 of the Code. It is a matter of record that the order taking cognizance has been passed by the Chief Judicial Magistrate without holding any further enquiry. On the contrary, it has been passed on the basis of the same materials which were available on the record of the proceedings and in consideration whereof the learned court below on earlier occasions had dismissed the complaint under Section 203. In fact, the Chief Judicial Magistrate while passing the impugned order has not even discussed the materials which prompted him to deviate from the order of dismissal passed on earlier occasions by the court below. The order taking cognizance in the circumstances discussed above, amounts to review of the earlier orders passed by the learned Magistrate dated 5.3.2003(Annexure 7) and 28.2.2005 (Annexure-9), dismissing the complaint under Section 203 of the Code and which is impermissible in law as the Subordinate Courts exercising criminal jurisdiction have no power to review or recall an order disposing of a matter. The exception to the proposition indeed is provided under Section 398 of the Code but 11 the learned Chief Judicial Magistrate, Purnea, having failed to exercise jurisdiction in the light of the circumstances set forth under Section 398 and having taken cognizance on the same materials, which were found insufficient for proceeding against the petitioners, the order is indefensible. The order impugned suffers from another serious infirmity in the light of the provisions contained in Section 468 of the Code. The complaint was filed on 26.10.2002 and the maximum punishment prescribed for the offences is one year meaning thereby no cognizance could be taken by the learned Magistrate after one year unless the limitation provided under Section 468 was condoned under Section 473 in view of the matters being deliberated upon at different levels. The time consumed in the deliberation of proceedings at different levels may be an explanation for the delay but cannot wipe of the delay altogether. The learned Magistrate ought to have condoned the delay under Section 473 of the Code before taking cognizance of the offences against the petitioners. Not having done so, the order is unsustainable. No doubt, the Court concerned is not required to look into the materials produced by an accused at the stage of cognizance as contended by Sri Srivastav appearing for the complainant, but that is not the position in the present case. On the contrary the learned Magistrate even in absence of the materials on which the accused sought to rely, had dismissed the complaint on merits after holding enquiry under Section 202 of the Code and upon appreciation of materials that had come during the course of the said enquiry. The subjective satisfaction of a Magistrate on appreciation of 12 materials recorded during the 202 enquiry is not to be interfered with unless the Court concerned upon holding any further enquiry, in the light of directives issued by the Revisional Court under Section 398 of the Code, is satisfied that the circumstances warrants the same. A perusal of the order impugned manifest that the order has been passed without holding any further enquiry thus rendering itself unsustainable. In so far as the contention advanced on behalf of the learned counsel for the complainant regarding framing of charge is concerned, the present case not arising out of a warrant case and thus not falling under Chapter XIX of the Code but under Chapter XX requiring a summary trial, merely requires a recital of the accusations to the accused by the Magistrate in terms of Section 251. There is no formal framing of charge as provided under Sections 228, 240 or 246 of the Code. In view of the said legal position, it makes no difference whether or not the charges have been explained to the petitioners. In any view of the matter, the inherent powers vested in this Court under Section 482 of the Code are wide enough to prevent any miscarriage of justice or in the interest of justice or to prevent any abuse of the process of the Court. The circumstances for exercise of such power oft repeated in judicial pronouncements, and more broadly discussed by the Hon’ble Supreme Court in the case of Bhajan Lal (Supra) requires no reiteration. The proceedings in question suffering from legal infirmities as discussed above also is not sustainable on merits as is manifest from the second order of dismissal passed by the learned Judicial Magistrate, 1st Class Purnea in the light of the directions issued by the Revisional 13 Court dated 16.07.2004 (Annexure-8) and placed at Annexure-9 to the present proceedings. The learned Magistrate has passed the order considering not only the materials that has come during Section 202 enquiry but also the materials required to be considered by the Revisional Court in its order dated 16.07.2004. The fact that the father of the complainant while raising the grievance before the Consumer Forum in relation to the same bill and in respect to the same occurrence, made no allegations against the petitioners, is an important circumstance drawing in favour of the petitioners. The finding of the learned Judicial Magistrate 1st Class, in its order dated 05.03.2003 (Annexure-7) and again on 28.02.2005 (Annexure-9) holding that no case was made out against the petitioners either in consideration of the allegations made in the complaint or in the light of evidence of the sole witness led during the Section 202 enquiry, is also a relevant circumstance in favour of the petitioners. For the reasons aforesaid, this application is allowed. The entire proceedings arising from complaint Case No. 1273 of 2002 together with the order taking cognizance dated 07.01.2008 is quashed and set aside. There shall be no order as to costs. Bibhash (Jyoti Saran, J.)