Rabindra Nath Sen Vs the State of Jharkhand

For the Petitioners : Mr. R.N. Sahay, Sr. Advocate Mr. Soumitra Baroi, Advocate For O.P. No.2 : Mr. Shailesh Kumar Singh, Advocate For the State : Mr. Sanjay Kumar Srivastava, A.P.P. -----

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12/23.01.2024 Heard Mr. R.N. Sahay, learned senior counsel appearing for the petitioners, Mr. Shailesh Kumar Singh, learned counsel appearing for opposite party no.2 and Mr. Sanjay Kumar Srivastava, learned counsel for the State.

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This petition has been filed for quashing the order dated 18.12.2017 passed by the learned Sessions Judge, Dhanbad in Criminal Revision No.165/2017 arising out of C.P. Case No.812/2016 instituted for commiting offences under Section 500/501 of the Indian Penal Code read with Section 120B of the Indian Penal Code.

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The complaint case was filed by opposite party no.2 alleging therein that he joined the services of Damodar Valley Corporation (DVC) Trainee Engineer on 16.03.1989 and he retired from services on 31.01.2013 as Chief Engineer-II. Just five days prior to his retirement from services of DVC, the complainant was served upon with a charge-sheet on false and flimsy grounds and a domestic inquiry was set up against him which

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culminated into exoneration of all charges passed by the Disciplinary Authority of the DVC i.e. Chairman. It was further alleged that the complainant instituted a suit for recovery of Rs. 20 Crores for malicious inquiry, loss of reputation etc. which was registered as Original Suit No. 324/2015 in the Court of the Learned Civil Judge, Sr. Div. IInd at Dhanbad. The accused persons (present petitioners of this case) appeared in the said suit and filed a common written statement in which slanderous and defamatory statements have been made by the accused persons against the complainant like:

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a. The complainant (O.P-2 in the present case) was involved in corruption and defalcation of cement purchase in the year 2008 in huge quantity showing urgency of work on local purchase. The proceeding initiated by management and lastly the management excused and exonerated from charge to the complainant.

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b. The complainant wrongly and fraudulently claiming himself as President of DVC Engineers Association and Additional Secretary General of AIPEE for which complainant not produced any record or documents that he was lawfully elected as president of DVC Engineers Association and additional secretary general of AIPEE but become self made leader or president.

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c. The O.P-2 is a double standard man neither he contested the charge during the enquiry proceeding not produced any documents witness to disprove the allegation of management but regularly threatened the enquiry officer, presenting officer and the then chairman of DVC to implicate in false and fabricated criminal or civil case or cases in court of law.

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It was further alleged that the complainant (O.P-2) has been a dry honest sincere official of DVC who had proposed for issuance of office memorandum for recovery of money for illegal consumption and unauthorised use of electricity whereas the DVC management issued the same. The Secretary, Ministry of power was also apprised of the loss which was accordingly acted upon. The complainant also saved several crores of Rupees by way of highlighting loss of revenue to the tune of rupees 150 crores per annum, due to employees and other unauthorised persons harming etc. The complainant was President of DVC Engineers Association and Additional Secretary General of all India Power Engineers Federation. The complainant is an acclaimed whistle blower who has raised many important issues in the interest of the national wealth. By imputing such words such as mentioned herein above the accused persons with malafide intentions and concerted efforts and imputation in writing with intention of harming the reputation of the complainant with full knowledge that such statement shall lower down the status of the complainant in the society. The accused persons have indulged not only in character assassination of the complainant but also tarnished his image among his friends, family members and society at large. The accused persons have made awantonly offensive allegation without any iota of truth in knowing it well that those statements are false and untrue the same has been made in the pleading before a court. No sooner did the written statements was filed in the court and a copy where of was provided with the complainant many persons started calling the complainant and ridiculed him. The said WS was referred to in the open court and the common people also heard about such allegations. It appears that accused persons in deep conspiracy with each

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other circulated copy of the written statement on the date of filing the same in the court just to give a wide coverage of those slanderous statements in public domain and thus it was alleged that the accused persons have committed offence punishable under section 500, 501 read with 120 of IPC.

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Mr. R.N. Sahay, learned senior counsel appearing for the petitioners submits that the petitioners were the employees of Damodar Valley Corporation (DVC) and now all the petitioners have retired. He further submits that opposite party no.2 was also an employee of DVC and he has also retired from services. He also submits that the said complaint case was considered by the learned Trial Court and vide order dated 11.04.2017 and she has been pleased to dismiss the said complaint case. He submits that against that order, opposite party no.2 preferred Criminal Revision No.165/2017 and the learned Sessions Judge has set aside the said order and remanded the matter to the learned Trial Court to further make enquiry and, thereafter, pass a reasoned order keeping in view the observation made by the learned Revisional Court. He submits that the observation given by the learned Revisional Court was not in accordance with law as it was in the domain of the learned Trial Court to consider that aspect of the matter with regard to cognizance, however, the learned Sessions Judge has exceeded his jurisdiction. To buttress this argument, he relied upon the judgment passed by the Hon'ble Supreme Court in the case of Rajendra Rajoriya v. Jagat Narain Thapak & another , reported in 2018 (2) Supreme 100 . Paragraphs 15 and 16 of the said judgment are quoted hereinbelow:

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“15. On a perusal of the Sessions Court judgment (quoted supra), we are of the opinion that the Sessions Court did not pass an order taking cognizance. The

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Sessions Court order should have been construed only as a remand order for further enquiry. The observations made by the Sessions Court were only justification for a remand and the same did not amount to taking cognizance. In view of the above, the High Court clearly misconstrued the Sessions Court order and proceeded on an erroneous footing. On the other hand, the Revisional Court was also in error to the extent of influencing the Magistrate Court to keep the findings of the Sessions Court in mind, while considering the case on remand. The misconception created before the High Court was due to the fact that the remand order provided discretion for the trial court to conduct further enquiry and thereafter consider issuing process. The High Court in the case at hand without appreciating the dichotomy between taking cognizance and issuing summons, quashed the complaint itself on wrong interpretation of law. In the light of the above, the impugned order of the High Court cannot be sustained in the eye of the law.

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16. Now coming to the second aspect as to the legality of the order of the learned Magistrate taking cognizance of the matter. The standard required by the Magistrate while taking cognizance is well settled by this Court in a catena of judgments. In Subramanian Swamy v. Manmohan Singh [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] , this Court explained the meaning of the word “cognizance” holding that: (SCC p. 90, para 34)

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“34. … In legal parlance cognizance is ‘taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially’.”

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We may note that the Magistrate while taking cognizance has to satisfy himself about the satisfactory grounds to proceed with the complaint and at this stage the consideration should not be whether there is sufficient ground for conviction. It may not be out of context to note that at the stage of taking cognizance, the Magistrate is also not required to record elaborate reasons but the order should reflect independent application of mind by the Magistrate to the material placed before him. ”

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Relying on the above judgment, Mr. R.N. Sahay, learned senior counsel appearing for the petitioners submits that in view of the observation made by the learned Revisional Court to look into the observation made therein, the learned Trial Court is not allowed to apply its independent mind. 6. Mr. R.N. Sahay, learned senior counsel appearing for the petitioners further submits that earlier also, the C.P. Case No.1225/2013 was filed by

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opposite party no.2, which was dismissed by the learned Trial Court vide order dated 05.08.2013. He also submits that opposite party no.2 has filed Original Suit No. 324/2015, wherein, the prayer was made for directing the defendants (petitioners) to pay a sum of Rs.4 Crores for causing loss of post retirement earning due to illegal and malicious disciplinary proceedings and to pay a sum of Rs.8 Crores for making defamatory statement against the plaintiff (opposite party no.2). He submits that the said original suit was decided on contest and the same was dismissed vide judgment dated 29.05.2020. He submits that for the same cause of action, the present case has been filed against the petitioners, who have bonafidely acted and disciplinary proceeding was initiated against opposite party no.2. He submits that in view of that, the learned Revisional Court's order is fit to be set aside.

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On the other hand, Mr. Shailesh Kumar Singh, learned counsel appearing for opposite party no.2 submits that defamatory words have been used against opposite party no.2 in the written statement filed by the petitioners before the learned Court in Original Suit No.324/2015 and in view of that, reputation of opposite party no.2 has been harmed. He further submits that the learned Revisional Court has rightly passed the impugned order. He refers to certain paragraphs of the complaint case and submits that the reputation of opposite party no.2 has been badly effected and in view of that, the learned Revisional Court has rightly passed the order.

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Mr. Sanjay Kumar Srivastava, learned counsel for the State submits that the learned Court has rightly passed the order.

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The Court has gone through the materials on record including the contents of the complaint case, the order of the learned Trial Court, the

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order of the learned Revisional Court as well as the judgment of the learned Court in Original Suit No.324/2015. It is an admitted position that these petitioners and opposite party no.2 were employed in the DVC. In the official capacity, certain departmental proceeding was initiated against opposite party no.2 and two of the charges against opposite party no.2 has been found to be true, however in the another charge, the Chairman of the DVC has decided on his own to exonerate opposite party no.2. If such a situation is there, the question remains how the definition of Section 499 of the Indian Penal Code is attracted. These petitioners have acted in the official capacity and it is not a case that in all the charges, the opposite party no.2 has been exonerated. Two of the charges have been proved against opposite party no.2.

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Further, opposite party no.2 has filed C.P. Case No.1225/2013, which was dismissed vide order dated 05.08.2013. The Original Suit No.324/2015 was instituted on 19.08.2015, which was decided vide judgment dated 29.05.2020 by which the same was dismissed. During pendency of the said original suit, the present complaint case was filed and the allegations are made that defamatory statements have been made by the petitioners in the written statement against opposite party no.2. A petition was required to be filed before the learned Court and if any objection was there, opposite party no.2 was having remedy to move appropriate application before that Court only for appropriate orders in terms of the provisions made under Order VI Rule 16 of the Code of Civil Procedure and not doing that, opposite party no.2 has filed the present complaint case.

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By way of elaborate judgment, Original Suit No.324/2015 was dismissed. Opposite party no.2 has not challenged that order in the

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higher Court. It is well settled that the Civil Court's judgment can be considered in the criminal case. A reference may be made to the judgment passed by the Hon'ble Supreme Court in the case of Rukmini Narvekar v. Vijaya Satardekar and others , reported in (2008) 14 SCC 1 .

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The Court finds that the learned Trial Court is required to pass a fresh order looking into the observation made in the Revisional Court's order, meaning thereby, the direction is there to look into the observation and pass an order on the point of cognizance and the learned Trial Court was not given a free hand to apply its judicial mind. If such a situation is there, the order passed by the learned Revisional Court will not survive in light of the judgment passed by the Hon'ble Supreme Court in the case of Rajendra Rajoriya (supra).

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In view of the above facts, reasons and analysis, the order dated 18.12.2017 passed by the learned Sessions Judge, Dhanbad in Criminal Revision No.165/2017 arising out of C.P. Case No.812/2016 is set aside.

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Accordingly, this petition is allowed and disposed of.

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Interim order, if any granted by this Court, is vacated.

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(Sanjay Kumar Dwivedi, J.)

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Ajay/ A.F.R.

Rabindra Nath Sen v. the State of Jharkhand

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Rabindra Nath Sen v. the State of Jharkhand

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