CRIMINAL MISCELLANEOUS No.14780 OF 2002 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- T. N. CHOUBEY @ TRILOKI NATH CHOUBEY, SON OF LATE YOGENDRA PRASAD CHOUBEY, RESIDENT OF MOHALLA SARISTABAD, P.S. GARDANIBAGH, PATNA, DISTRICT PATNA. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. MAMTA KUMARI, W/O SRI BALBEER SHARMA, ASSISTANT TEACHER, RAJKIYA MANDIR MIDDLE SCHOOL, RAJBANSINAGAR, PATNA. ... ... OPPOSITE PARTIES. ---- For the Petitioner : M/S Ram Kishore Singh,Adv. Rajnish Kumar Choubey,Adv. For O.P. No.2 : Mr. Sachidanand Choudhary, Adv. For the State : Mrs.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 at the relevant time, was Special Executive Magistrate and was duly authorized by the Additional District Magistrate, Law and Order, Patna to get an un-authorized encroachment evicted, has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 9.1.2002, passed by Shri P.D. Gupta, Judicial Magistrate, Ist Class, Patna in Complaint Case No.1749(C) of 2001, whereby the learned Magistrate has 2 taken cognizance of offence under Sections 323 and 380 of the Indian Penal code against the petitioner and others and directed for summoning the petitioner and others. 2. Short fact of the case is that the opposite party no.2, an Assistant Teacher, Government Bani Mandir Middle School, Rajbanshi Nagar, Patna, filed a complaint in the court of Chief Judicial Magistrate, Patna vide Complaint Case No.1749(C) of 2001 arraying therein one Ashok Kumar, District Superintendent of Education, Patna, the petitioner and other 12 police personnel as accused on accusation of commission of offence under Sections 448, 323 and 380 of the Indian Penal Code. It was disclosed in the complaint petition that by an order dated 12.12.1997, issued by the Deputy Development Commissioner, Patna, a quarter situated at Adalatganj Girls Middle School, Water Tower, was allotted to her. Before the said order, one Late Lakhrani Devi, Head Mistress was living in the said quarter. After her retirement, the 3 complainant started to live in the said quarter with Lakhrani Devi and her sister Madhuri Kumari. After the retirement of Lakhrani Devi, the said quarter was allotted in favour of one Surendra Prasad, Assistant Teacher by the order of District Superintendent of Education. The Deputy Development Commissioner, Patna, after cancelling the said allotment allotted the said quarter to the complainant, which was in her possession. After the retirement of Lakhrani Devi, her some amount was due to the department and for payment of such amount, she had filed a petition before High Court vide M.J.C. No.1293 of 1999, wherein also she had admitted that the complainant was residing in the said premises. Some time before the date and time of occurrence i.e. 10.9.2001 at about 4.00 P.M. (Evening), while she had gone to market and she returned back, she noticed that all the accused persons including the petitioner by force intruded into her house (quarter) and started to throw all the articles outside the quarter. On objection being raised by the complainant, they 4 threatened the complainant to leave the place. Thereafter, Accused No.1 pushed her whereby she fell down and received serious injuries. It was alleged against the petitioner that he forcibly took her attaché containing ornaments. Thereafter, all the accused persons returned back with aforesaid articles of the complainant. The said complaint was filed on 11.9.2001. After filing of the complaint, the complainant was examined on S.A. and adduced four witnesses in support of her complaint. The learned Judicial Magistrate, Ist Class, Patna, by its order dated 9.1.2002, took cognizance of offence under Sections 323 and 380 of the Indian Penal Code and directed for summoning the accused persons which include the petitioner. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 13.12.2002, while issuing notice to opposite party no.2, this Court directed that in the meantime, further proceeding in Case No.1749(C) of 2001 pending in the court of Shri P.D. Gupta, Judicial 5 Magistrate, Ist Class, Patna shall remain stayed. Subsequently, on 19.3.2004, the case was admitted for hearing. At the time of admission, opposite party no.2 had already entered her appearance. While admitting, it was further directed that during the pendency of the application, interim order dated 13.12.2002 shall remain operative and order of stay is still continuing. 4. At the time of hearing, Shri Ram Kishore Singh, learned counsel for the petitioner, has argued that the present complaint petition was filed maliciously and on the ground of malicious prosecution, entire proceeding in Complaint Case No.1749(C) of 2001 as well as order of cognizance dated 9.1.2002 are liable to be set aside. It was submitted by Shri Singh that the petitioner was discharging his official duty, since he was deputed as Special Magistrate to get the Government quarter in question evicted from illegal and un-authorized possession of the complainant. The petitioner along with the force deputed for eviction had executed the 6 order of eviction, which was passed by the Sub Divisional Magistrate-cum-Competent Officer in Eviction Case No.30 of 1999. It was submitted that since the petitioner was discharging his official duty, the learned Magistrate, even though the case was false and malicious, was required to see as to whether prosecution sanction issued by the competent authority was available or not and in absence of sanction for prosecution also, the order of cognizance is liable to be set aside. 5. In the present petition, it has been asserted that the petitioner in the capacity of Special Executive Magistrate was duly authorized vide order of Additional District Magistrate, Law and Order, Patna contained in memo No.2056 dated 8.9.2001 to get the unauthorized encroacher evicted in compliance of order passed in eviction case No.30 of 1999 by Sub-Divisional Magistrate cum-competent officer, Patna Sadar and for maintaining peace and tranquility he had also provided armed forces including ladies constables and the petitioner was specifically 7 directed to ensure eviction of said Govt. quarter on 10.9.2001. The petitioner in compliance of the order of the Superior officer reached on the spot alongwith police personnels and called upon the District Superintendent of Education and Sri Sunil Kumar, Dy. D.S.E., Patna and got the said quarter evicted in very peaceful manner in presence of both the aforesaid officer and accordingly the petitioner submitted his compliance report dated 10.9.2001 as ordered by the A.D.M., Law and Order, Patna over which the Police Inspector Sri Madan Mohan Prasad Sinha of Kankarbagh Police Station also put his signature. Similar compliance report was also submitted by the D.S.E. Sri Sunil Kumar, Patna dated 10.9.2001. It was also asserted that initially the said quarter which is meant for teachers/employees of Govt. girls Middle School, Adalatganj and located in the school campus was allotted to Srimati Lakhrani Devi, the then Head Mistress of the school. After superannuation of Srimati Lakharani Devi the District Superintendent of Education, 8 Patna vide his order dated 2.6.97 contained in memo no.4159 allotted the said quarter to Sri Suresh Prasad, an Assistant Teacher of Govt. Girls Middle School, Adalatganj, Water Tower, Patna. The complainant has/had never been an Assistant Teacher in Govt. Boys Middle School, Adalatganj, Patna and thus there was no question to re-allotment of the said quarter. Even after retirement of Smt. Lakhrani Devi the outgoing headmistress of the school, her son namely Birendra Kumar still occupied the said quarter and thus an eviction case was instituted being eviction case no.30/99 (State Versus Lakhrani Devi) in the court of Sub-Divisional Magistrate cum competent officer, Patna, Sadar. In the said case complainant also prayed to implead her as opposite party and she also contested the said eviction case through engaging a lawyer. On 6.9.1999, the eviction case was disposed of with a direction to the encroacher to hand over the vacant possession of the said quarter within a period of 15 days otherwise suitable steps will be taken to get the said quarter 9 evicted by using force. Accordingly the S.D.M. cum competent authority sent a letter dated 9.11.1999 requesting the Magistrate I/C District Control Room, Patna to ensure eviction of the said quarter from unauthorized encroacher and accordingly send report to that effect by 20.11.1999. The petitioner has further asserted in the present petition that the complainant in collusion with outgoing headmistress hatched a conspiracy and accordingly she got the allotment in her favour and she was also allowed to reside in the said quarter alongwith Sri Birendra Kumar, son of Lakhrani Devi. Pursuant to order of the District Magistrate, Patna the Dy. D.S.E. Smt. Nirupa Kumari was directed to make enquiry regarding the unauthorized encroachment of the said quarter. The Dy. D.S.E. made an enquiry of quarter in question on 30.8.2000 and submitted a detailed report stating therein that the complainant namely Mamta Kumari in collusion with Smt. Lakhrani Devi impersonated herself to be the assistant teacher of the Govt. Boys Middle School, 10 Adalatganj (Water Tower) Patna although she is/was teacher of Middle School Bani Mandir Rajbansinagar, Patna and the said quarter got allotted in her favour. When the real facts came to light the District Superintendent of Education, Patna vide his order dated 25.10.2000 contained in memo no.7166 declared the allotment of quarter in favour of Mamta Kumari to be illegal and confirmed the order dated 2.6.1997 contained in memo no.4159 in favour of Sri Suresh Prasad in whose favour earlier allotment was made. It has also been stated that after evicting the encroacher namely Birendra Kumar on 10.9.2001 the Dy. D.S.E. Sri Sunil Kumar got the said quarter evicted in presence of the authorities including the present petitioner who has/had been deputed in capacity of special executive Magistrate alongwith police personnels including the ladies constables and the said quarter was got vacated in a very peaceful and smooth manner. It has also been stated by the petitioner that even after the quarter in question was legally got evicted again the complainant. 11 Un-locked the said quarter and entered into the same, which was highlighted at the floor of Legislative Council and thereafter, the Director, Primary Education, Government of Bihar directed the District Magistrate as well as District Superintendent of Education to put the complainant under suspension and again Magistrate was deputed with sufficient armed forces and again the said quarter was got evicted on 21.12.2001 and vacant possession of the quarter in question was handed over to legally allotted person, namely, Surendra Prasad. The petitioner has also stated that after second eviction, the complainant of the present case, filed an another complaint vide Complaint Case No.2341(C) of 2001 against the District Superintendent of Education, Shri Ashok Kumar, the Magistrate deputed for vacating the quarter as well as new allottee for offence under Sections 323, 448 and 380 of the Indian Penal Code. The petitioner has also enclosed a copy of petition in Complaint case No.2341(C) of 2001 as Annexure-12 to the petition. On aforesaid 12 facts, it has been argued by Shri Ram Kishore Singh, learned counsel for the petitioner that the opposite party no.2 is in habit of filing false and frivolous complaints and his main object was to occupy the quarter in question by hook and crook. On the aforesaid facts and circumstances, it has been prayed that the entire criminal proceeding in Complaint Case No.1749(C) of 2001 is malicious and on the ground of malicious prosecution, same is fit to be set aside. 6. Shri Sachidanand Choudhary, learned counsel for opposite party no.2, has strongly opposed the prayer of the petitioner. It was argued by Shri Choudhary that number of documents, which have been brought on record before this Court by the petitioner may not be examined or looked into since those facts can be looked into by the court below where the original criminal proceeding is pending. It was also submitted that the petitioner himself has admitted that he participated in the eviction of the quarter in question and as such the allegation made by the complainant 13 in the complaint petition is got corroborated by the admission of the petitioner. He has also submitted that the quarter in question was allotted to the complainant by the competent person i.e. Deputy Development Commissioner and as such the entire process of eviction was illegal. Accordingly, it has been prayed to reject the present petition. 7. I have also heard Smt. Indu Bala Pandey, learned Additional Public Prosecutor for the State. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Of course, at the time of hearing a petition under Section 482 of the Code of Criminal Procedure, it is not advisable to examine the documents annexed with the petition, which is actually required to be looked into by the concerned court. However, in peculiar facts and circumstances of the present petition to some extent, some documents were perused by this Court. It is not in dispute that the petitioner was discharging his official 14 duty regarding getting the Government premises in question evicted. Fact also remains that the execution of eviction was done. It further appears from Annexure-12, which is a photo copy of the complaint petition filed in the court of Chief Judicial Magistrate, Patna i.e. Complaint Case No.2341(C) of 2001 that the opposite party no.2 had filed second complaint not against the petitioner, but against the officers, who were instrumental in the government premises, in question, evicted at subsequent stage. This shows that the complainant is habitual litigant. 9. In view of the entire facts and circumstances of the present case, the court is of the considered opinion that present complaint was filed maliciously and with oblique motive. Besides the fact aforementioned, the learned Magistrate, while taking cognizance, had failed to appreciate that allegation against the petitioner was in relation to his discharge of official duty and as such sanction for prosecution was necessary. The prosecution being malicious is liable to be set aside. 15 10. Accordingly, the order of cognizance dated 9.1.2002 passed by Shri P.D. Gupta, Judicial Magistrate, Ist Class, Patna in Complaint Case No.1749(C) of 2001 whereby the learned Magistrate has taken cognizance of the offence as well as entire criminal proceeding in Complaint Case No.1749(C) of 2001 are hereby set aside and petition stands allowed. PATNA HIGH COURT Dated 4th February,2011 N.A.F.R./N.H. ( Rakesh Kumar,J.)