Purushottam Kumar Rai Alias Purushottam Kumar Vs the State of Jharkhand

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.941 of 2021

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Purshotam Kumar Rai @ Purushottam Kumar, aged about 39 years, son of late Vashishtha Prasad Rai @ B.P. Rai, resident of Brahmarshi Cloloy, Hatgarha, Karnibag, P.O. & P.S. Kunda, District Deoghar

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Abhishek Newar, aged about 42 years, son of Vinod Kumar Newar, resident of Newar Bhawan, Kestiyar Town, P.O. & P.S. Deoghar, District Deoghar

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Uttam Kumar Rai, aged about 43 years, son of Bashisht Prasad Rai, resident of Brahmarshi Cloloy, Hatgara, Karnibag, P.O. & P.S. Kunda, District Deoghar

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Babblu Kumar Rai @ Bullu Kumar Rai, aged about 34 years son of Byash Rai, resident of Dumariya, P.O. Bamangaon, P.S. Sarath, District Deoghar … Petitioners

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Versus

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The State of Jharkhand

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Anuj Kumar, son of Shri Kapildeo Prasad, resident of Barsamsiya,

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Near Children Jail, P.O. & P.S. Dhansar, District Dhanbad

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… Opposite Parties

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For the Petitioners : Mr. R.S. Mzumdar, Sr. Advocate Mrs. J. Mazumdar, Advocate Mr. Rohan Mazumdar, Advocate Mr. Nishant Kr. Roy, Advocate For the State : Mr. V.K. Vashistha, Spl.P.P. For the O.P. No.2 : None

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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Cr. M.P. No.941 of 2021

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No one turns up on behalf of the opposite party No.2 in spite of repeated calls though the opposite party No.2 has put his appearance through his advocate.

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This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer for quashing the order dated 03.02.2021 passed by the learned Judicial Magistrate-1^st Class, Dhanbad including the entire criminal proceedings in connection with C.P. Case No.3740 of 2019 whereby and where under the learned Judicial Magistrate-1^st Class, Dhanbad has found sufficient material to proceed against the petitioners for having committed the offences punishable under Section 323, 379 of the Indian Penal Code.

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The brief facts of the case is that there was a business transaction between the informant-complainant- opposite party No.2 and the petitioners in which the opposite party No.2 altogether invested Rs.20,95,075/-. The petitioners misappropriated the said money of the opposite party No.2. The opposite party No.2 sent a legal notice to the petitioners, so, there was animosity between the parties. In this background on 27.11.2017 at 5:00 Hrs, the petitioners overtook the vehicle of the opposite party No.2 while going to the hotel and stopped him. They criminally intimidated the informant by enquiring him with pistol pointed at the temple of the head of the opposite party No.2 to forget about the money; about which the opposite party No.2 sent the legal notice and also threatened that otherwise the petitioners will kill the opposite party No.2. The petitioners committed theft of gold chain worth Rs.50,000/and also committed theft of mobile phone and cash of Rs.75,000/-. They also assaulted the opposite party No.2 that resulted in internal injury in the body of

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Cr. M.P. No.941 of 2021

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the opposite party No.2. The opposite party No.2 first filed complaint Case No.3460 of 2017. The same was referred to the police under Section 156 (3) of the Code of Criminal Procedure. Consequent upon which Baliapur P.S. Case No.191 of 2017 was registered but the police submitted final form showing lack of evidence and did not send up the petitioners for trial. Alleging that in collusion with the petitioners, the police did not submit chargesheet; the opposite party No.2 filed a protest-cum-complaint petition which was numbered as C.P. Case No.3740 of 2019.

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On the basis of the protest-com-complaint, statement on solemn affirmation and the statement of the enquiry witnesses, the learned Judicial Magistrate-1^st Class, Dhanbad found prima facie case for the said offences as already mentioned in the foregoing paragraphs of this judgment.

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Learned counsel for the petitioners submits that this false case has been instituted with ulterior motive. If the allegations made in the complaint as well as in the protest-cum-complaint petition is considered to be true in its entirety, still no offence is made out against the petitioners as the dispute between the parties is a civil dispute.

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It is then submitted that the learned Judicial Magistrate-1^st Class, Dhanbad in a mechanical manner passed the order dated 03.02.2021. Hence, it is submitted that the prayer made by the petitioners in this Criminal Miscellaneous Petition, be allowed.

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Learned Spl.P.P. on the other hand vehemently opposes the prayer made by the petitioners for quashing the order dated 03.02.2021 passed by the learned Judicial Magistrate-1^st Class, Dhanbad including the entire criminal proceedings in connection with C.P. Case No.3740 of 2019 and submits that

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Cr. M.P. No.941 of 2021

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only ground for quashing the order by which the learned Judicial Magistrate-1^st Class, Dhanbad has found prima facie case against the petitioners is that the proceeding is the malicious one, but, such contention of the petitioner cannot be determined at this stage and can only be determined at the time of conclusion of the trial as has been held by the Hon’ble Supreme Court of India in the case of Central Bureau of Investigation vs. Aryan Singh etc. reported in (2023) SCC OnLine SC 379 paragraph-11 of which reads as under:-

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“11. One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.” (Emphasis supplied)

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and submits that the commission of theft and causing hurt, by no stretch of imagination can be said to be a civil dispute. It is next submitted that even if there is a civil dispute between the parties that does not entitle to the petitioners to take law on to their own hands and commit the offence of theft and causing hurt. Hence, it is submitted that the Criminal Miscellaneous Petition, being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that whether the proceeding is a malicious one or not can only be determined at the time of conclusion of the

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Cr. M.P. No.941 of 2021

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trial as has been observed by the Hon’ble Supreme Court of India in the case of Central Bureau of Investigation Versus Aryan Singh etc. (Supra).

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Now, coming to the facts of the case, there is direct and specific allegation against the petitioners of having committed theft of gold chain, mobile phone of the opposite party No.2 and cash of Rs.75,000/-. There is also direct and specific allegation against the petitioners of having caused hurt to the opposite party No.2 by assaulting him. It is a settled principle of law that a legitimate prosecution cannot be stifled by the High Court in exercise of the power under Section 482 of the Code of Criminal Procedure as has been held by the Hon’ble Supreme Court of India in the case of Monica Kumari (Dr.) & Another vs. State of Uttar Pradesh & Others reported in (2008) 8 SCC 781 .

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Under such circumstances, this Court is of the considered view that this is not a fit case where the impugned order dated 03.02.2021 passed by the learned Judicial Magistrate-1^st Class, Dhanbad including the entire criminal proceedings in connection with C.P. Case No.3740 of 2019, be quashed and set aside.

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Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 1^st of July, 2024 AFR/ Saroj

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Cr. M.P. No.941 of 2021

Purushottam Kumar Rai Alias Purushottam Kumar v. the State of Jharkhand

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Purushottam Kumar Rai Alias Purushottam Kumar v. the State of Jharkhand

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