Dismissed

Birendra Kumar Singh And Ors. v. The State Of Jharkhand And Anr.

Jharkhand HC9 Dec 2019W.P.(Cr.)/92/2017

Case brief

AI extract

What is this about?

This writ petition sought quashing of orders rejecting discharge applications under Section 245(2) CrPC and taking cognizance. The High Court held the Section 245(2) application was not maintainable as the High Court had already dismissed a Section 245(1) application on merits. Additionally, the Court refrained from examining the validity of the State instruction letter as it was not challenged an

What did the court decide?

The writ application filed under Article 226 of the Constitution of India for quashing the impugned orders is dismissed as having no merit.

Birendra Kumar Singh And Ors. Vs The State Of Jharkhand… — Quashing and FIR | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (Cr.) No. 92 of 2017

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Birendra Kumar Singh

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Pankaj Kumar Jha

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Smt. Shuko Bhagat … Petitioners

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-versus-

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The State of Jharkhand

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Ashok Kumar Ghosh … Respondents

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CORAM : HON’BLE MR. JUSTICE ANANDA SEN

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----

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For the Petitioner: Mr. R.S. Mazumdar, Sr. Advocate Mr. Ashok Kumar Yadav, Advocate Mr. Kumar Vaibhav, Advocate For the Respondents: Mr. Manoj Kumar, S.C. (Mines) Mr. Amritansh Vats, Advocate

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10/ 09.12.2019 Petitioners, by filing this writ application under Article 226 of the Constitution of India, pray for quashing the order dated 07.02.2017 passed by the Judicial Magistrate, Ranchi in Complaint Case No.237 of 2002, whereby their application under Section 245(2) of the Code of Criminal Procedure for discharge has been rejected. Petitioners further pray to quash the order taking cognizance dated 04.11.2003, passed by the Judicial Magistrate, Ranchi in Complaint Case No.237 of 2002, by which cognizance of offence under Sections 447, 379, 427 of the Indian Penal Code has been taken against the petitioners.

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2. Learned senior counsel appearing on behalf of the petitioners submit that the order taking cognizance is absolutely bad as the State of Jharkhand has got no jurisdiction to issue the letter No.2261 dated 29.09.2001, which is the basis of taking cognizance of the offence. He submits that merely on the instructions of the superior authorities, the petitioners had gone to take possession of the mortgaged assets for which this false criminal case has been lodged. He submits that all these facts have not been taken into consideration while disposing of the application under Section 245(2) of the Code of Criminal Procedure. He submits that the property is a private property and does not belong to any of the undertakings of the State, thus, the letter No.2261 dated 29.09.2001 has got no application. He submits that since the property was hypothecated to Bihar State Financial Corporation, having its headquarters at erstwhile State of Bihar and was not within the territorial jurisdiction of Jharkhand, thus, the letter dated 29.09.2001 could not have been issued. He submits that the Court below should have considered the aforesaid position of law while deciding the application under Section 245(2) of the Code of Criminal

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-: 2 :-

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Procedure. On the aforesaid ground also, the petitioner submits that the order taking cognizance is absolutely bad.

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3. Learned A.P.P. appearing for the State opposes the prayer of the petitioners and submits that the petition filed under Section 245(2) of the Code of Criminal Procedure is not maintainable. He submits that admittedly, application for discharge under Section 245(1) of the Code of Criminal Procedure was earlier dismissed up to the High Court and thus, there is no scope for invoking provision under Section 245(2) of the Code of Criminal Procedure. He submits that as the High Court on earlier occasion has found that there are sufficient materials to frame charge, thus, the order taking cognizance cannot be quashed.

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4. To decide this particular case, it is not necessary to discuss the detail facts of the prosecution case. A complaint was lodged being Complaint Case No.237 of 2002. After following the procedure of law, on 04.11.2003, learned Judicial Magistrate, Ranchi took cognizance of the offence under Sections 447, 379 and 427 of the Indian Penal Code and issued processes against the accused. The said order was not challenged before any Court. Thereafter, the petitioners filed an application under Section 245(1) of the Code of Criminal Procedure. The same was dismissed by the Judicial Magistrate. Challenging the said order, a petition was filed being Cr. M.P. No.260 of 2009, which was also rejected by the High Court on 27.06.2012. After disposal of the criminal miscellaneous petition by the High Court, the petitioners again tried to reopen the issue by filing a petition under Section 245(2) of the Code of Criminal Procedure. The Trial Court held that this application is not maintainable, as because the High Court has already decided on merits the application filed by the petitioners under Section 245(1) of the Code of Criminal Procedure.

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5. When I go through the impugned order, I find that the learned Court below, after considering the judgment on the issue, namely, Cricket Association of Bengal & Others versus State of West Bengal and others reported in 1971 Cr L J 1432 ; has held that after dismissal of a petition under Section 245(1), petition under Section 245(2) of the Code of Criminal Procedure is not maintainable. From bare perusal of this provision of Code of Criminal Procedure, I find that if an application under Section 245(1) of the Code of Criminal Procedure is dismissed on merits, second application under Section 245(2) of the Code of Criminal Procedure would not be maintainable. The Court below has rightly applied the law in coming

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to a conclusion that the second application of the petitioners under Section 245(2) is not maintainable when their application under Section 245(1) of the Code of Criminal Procedure was dismissed by this High Court.

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6. Further plea of the petitioner that letter No.2261 dated 29.09.2001 is bad in law cannot be decided in this criminal writ application. I find that the petitioners have never challenged the validity and legality of the said letter. Until and unless the said instruction of the State of Jharkhand is set aside, the same is binding. The said letter is not under challenge in this writ application too.

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7. Furthermore, when this High Court in Cr. M.P. No.260 of 2009 has held that there are sufficient materials to frame charge against the petitioners, this Court cannot reopen the issue again and decide on the merits of the order taking cognizance.

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8. Thus, I find no merit in this writ application. The same is, accordingly, dismissed.

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( Ananda Sen, J.)

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Kumar/Cp-03

Birendra Kumar Singh And Ors. v. The State Of Jharkhand And Anr.

Case brief

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Birendra Kumar Singh And Ors. v. The State Of Jharkhand And Anr.

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