IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.57282 of 2007 BHANTE BODHI PAL @ BHIKKHU BODHI PALA, son of Late Sri Pradip Ranjan Barua, residing at Bodh Gaya, P.S. – Bodh Gaya, District – Gaya. ---------------- Petitioner. Versus 1. STATE OF BIHAR 2. ARUP BRAMHACHARI ALIAS SWAMIJEE son of Sri Birinchi Pada Sarkar, residing at I.I.T. Kharagpur, Quarter No. C/08, District – Midnapur, West Bengal, presently residing at Root Institute Road, P.S. Bodh Gaya, District – Gaya, Bihar. ----------------- Opp. Parties. ------- For the petitioner : Mr. Y.V. Giri, Sr. Adv. Mr. Pranav Kumar, Adv. For the State : Sri M.N. Jha, Adv. For the Opp. Party : Smt. Rina Sinha, Adv. ------- 5 15.04.2010 Heard learned counsel for the petitioner, State and Opposite Parties. This application has been filed under Section 482 of the Criminal Procedure Code seeking quashing of the order dated 06.12.2007 for offences under Sections 406, 426, 34 120B of the Indian Penal Code along with Section 3 of the Prevention of Damage to Public Property Act, 1984 and complaint case filed by Opposite Party no. 2 bearing no. 850 of 2007. Opposite party no. 2 filed the above complaint against four named persons including the applicant, who are members of Bodh Gaya Temple Management - 2 - Committee (hereinafter referred to ‘B.T.M.C.’) alleging that on 10.07.2006 with consent of other accused persons at the dictates of the applicant some Branches of great holly Peepal Tree i.e. Mahabodhi Tree, which was cut by one Sri Deepak Kumar Malakar an employee of B.T.M.C. and the Branches and leaves were carried to the hose of the applicant. It hurt the sentiments of hindu and Budhists in spite of protest nothing could be done and mischief is continued. After filing of the complaint, the court below sought report from the Commissioner, Magadh Division, Gaya, in the matter who submitted his enquiry report, whereon cognizance was taken by the court below which is being assailed by learned counsel for the applicant. It is submitted on behalf of the applicant that he has great scholar and author of several books. No cut of Mahabodhi Tree was done at his instance the person Deepak Kumar Malakar, allegedly committing such act at his instance was on leave on that day i.e. 10.07.2006, even the Commissioner in his report has stated that cuts are about two years old which was confirming by Forest Research Institute, Dehradun. It is further contended that materials are available - 3 - to show that such cuts were done much before in the year 2004, but, opposite party no. 2 a litigant in habit of filing different cases just in order to damage chance of the applicant to be Secretary of B.T.M.C. filed the complaint with false allegation. Learned counsel for the applicant placed reliance on the decisions of the Apex Court in a case of Inder Mohan Goswami and another Versus State of Uttaranchal reported in (2007) 12 SCC page 1 and All cargo Movers (India) Private Limited and others Versus Dhanesh Badarmal Jain and another reported in (2007) 14 SCC page 776. On the other hand, learned counsel for opposite party no. 2 as well as counsel representing the State supported the impugned order and submitted that there is nothing wrong in the impugned order and the reports regarding the period of cutting, pushing it 2 to 3 years backward have no sound basis and all such thing should be considered at the appropriate stage by the Trial Court. It is undisputed that there is a committee namely, Bodh Gaya Temple Management Committee, constituted under Section 3 of Bodh Gaya Temple Act, 1949, and there exists Mahabodhi Tree. The applicant is one of the Member of such committee known as Bodh Gaya Temple - 4 - Management Committee (B.T.M.C.). On filing of the complaint a report was called for by the court below from the Commissioner, which is Annexure – 2 of this application. In para 4 of the report, it appears that on the relevant date the applicant ordered one Deepak Kumar Malakar, working employee of B.T.M.C. to cut down some cardinal parts of the great Peepal Tree, when it was carried over to his house in B.T.M.C. compound area. In para 5 of the report, it is stated that I have seen the cut portion of the great Peepal Tree personally and it appears to me that the cuts about two years old from now and the Forest Research Institute, Dehradun confirmed about the cutting down of the Great Holly Peepal Tree. The above report is dated 01.12.2007, on the basis of opinion in paragraph 5, learned counsel for the applicant tried to push back the cutting of the branch of Tree in the month of December, 2005 instead of July, 2006. But, at this stage, it can only be said that this is nothing but an opinion of the Commissioner (Inquiry Authority). Learned counsel for the applicant led emphasis on Annexure – 9, which is preliminary technical report on - 5 - Bodhi Tree, Bodh Gaya of Forest Research Institute, Dehradun. Committee considered at the report of the District Magistrate, Gaya, visited Bodh Gaya temple on 28th June, 2007 i.e. roughly a year after the alleged date of cutting of the Tree and prescribed different treatments on growth cuttings etc. and the inference drawn at the cut branch under reference. The Committee has opined the stem of the Branch was carefully and credibly examined visually and it appears that the cutting is more than three years old. The basis of this prediction is explained below: “As many as nine technical basis relating to growth, colour, decay etc. have been mentioned besides, they have the basis of their opinion, two photographs provided by the committee showing same banner present in such photographs for the month of November, 2004 and March 2006, and a cut branch is visible above the lamp post in the photographs and on the basis thereof they also confirmed the inference drawn by their studies. But, at the same time, it is mentioned in the report, the Institute does not have any methodology to precisely determine and predicted the time and period of cutting of a Tree or its Branch, therefore, the predictions made - 6 - in the present study are suggestive.” Thus, on the basis thereof at this stage, the applicant cannot push back the date of cutting of the Tree as alleged to be 10.07.2006. Learned counsel for the applicant also tried to led emphasis that on earlier occasions also the Branches of the Tree were pruned as may appear from Annexure – 7. The resolution of the meeting of B.T.M.C. held on 17.12.1977, Resolution No. XXII is relevant to show that for safety of the Tree pruning of several hanging branches were recommended on proper growth and safety. But, at this stage the applicant cannot take help of all such resolutions it may be considered by the Trial Court at an appropriate stage. The applicant has not coming out with any case that the relevant Branch of the Tree was cut in order to provide some required safety on the recommendation of the appropriate authority. So far as the applicant being scholar of international frame and author of so many books etc. are concerned, in no manner was affects the crime if, he has committed. Thus, on going through the entire submissions of the Bar and materials available, the decision of the Apex - 7 - Court as cited and relied upon by the applicant are not applicable in this case since, prima facie case against the applicant is made out. Thus, I further find no merit in this application. Hence, it is hereby dismissed with a liberty to the applicant to place the materials before the Trial Court who shall pass due orders at an appropriate stage without being prejudice of instant order of dismissal of this application. The application stands dismissed. Rajeev/ (Akhilesh Chandra, J.)