Gokul Nath Tiwari Vs the State of Bihar

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IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.61 of 2019

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Arising Out of PS. Case No.-6 Year-2018 Thana- SC/ST District- Buxar

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GOKUL NATH TIWARI S/O LATE BASUDEO TRIPATHI @ BASDEO TIWARI R/O VILLAGE- NANDAN, P.S- DUMRAON, DISTT.- BUXAR.

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LALIT KUMAR TRIPATHI @ LALIT RAMAN TRIPATHI S/O MADAN MOHAN TRIPATHI R/O VILLAGE- NANDAN, P.S- DUMRAON, DISTT.- BUXAR.

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ABHAY TRIPATHI S/O LALIT KUMAR TRIPATHI R/O VILLAGENANDAN, P.S- DUMRAON, DISTT.- BUXAR.

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SURESH YADAV @ SURESH SINGH S/O LATE BIHARI YADAV R/O VILLAGE- NANDAN, POLICE STATION- DUMRAON, DISTT.BUXAR.

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... ... Appellant/s

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Versus

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THE STATE OF BIHAR

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SHEO MUNI MOCHI @ SHEOMUNI RAM S/O LATE KORILL MOCHI @ KORILL RAM R/O VILLAGE- NANDAN, P.S- DUMRAON, DISTT.BUXAR.

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... ... Respondent/s

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Appearance : For the Appellant/s : Mr.Devi Das Srivastava For the Respondent/s : Mr.Sadanand Paswan ======================================================

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CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL ORDER

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27 24-10-2024 Heard learned counsel for the appellants, learned

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counsel for the State and learned Special PP for the SC/ST Act.

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2. Though, initially this application was filed on behalf of seven appellants but the original appellant No.1, 4 and 6 have died and their name has been directed to be deleted by this Court vide order dated 01.05.2024.

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3. It has been submitted by the learned counsel for the appellant that the informant of the case has also died and for

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Patna High Court CR. APP (SJ) No.61 of 2019(27) dt.24-10-2024 2/9

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which an application as been filed and therefore no one appears for the informant.

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4. This appeal has been preferred for setting aside the order dated 06.10.2018 passed in SC/ST Case No. 47 of 2018 arising out of SC/ST Buxar P.S. Case No. 06 of 2018, by which the learned Additional District and Sessions Judge- 1^st , Buxar, has taken cognizance against the appellants under Sections 147, 148, 323, 504 and 506 of the Indian Penal Code and under Sections 3(i) (r) (s) (t) (w) (u) (v) of the SC/ST (Prevention of Atrocities) Act.

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5. As per the prosecution case, the complainant had filed Complaint Case No. 3© of 2018 alleging therein that he and his wife who were giving their services in Thakurbari/Temple were abused by the appellants by their caste name and have also assaulted the informant and his wife.

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6. Upon perusal of the complaint, the learned Special Judge, SC/ST Act, Buxar and referred the case to the police under Section 156(3) of the Code of Criminal Procedure for registering and investigating the case and on the basis of the same the police registered SC/ST Buxar P.S. Case No. 06 of 2018.

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7. It has been submitted by the learned counsel for

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the appellants that the appellants have falsely been implicated in this case because of the family dispute between the appellants and one Gopal Jee Tripathi.

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8. Learned counsel for the appellants further submits that the appellants no. 1 to 5 are not living at the place of occurrence as the Appellant No.1 is a retired General Surgeon and after his retirement he was/is living at Varanasi (U.P), Appellant No. 2 has retired from the post of Lecturer and he is also living at Kanpur (U.P), Appellant Nos. 3 to 5 were/are living at Buxar Town, Appellant No. 6 and 7 are caretakers of property and look after the agricultural matters of Appellant Nos. 1 to 5.

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9. It has further been submitted by the learned counsel for the appellants that a dispute regarding land between Appellant Nos. 1 to 5 and Gopal Jee Tripathi (brother of Appellant Nos. 1 to 2), who is said to be the Head Mahanth of Thakurbari (Temple) is going and because of the same, a Title Suit No. 197 of 1998 has been filed by the Appellant No. 1, 2 and father of Appellant No. 3. Gopal Jee Tripathi is defendant No. 10 in the said Title Suit and is main contesting party to the suit, who is living at Village- Nandan, Police Station- Dumraon, District- Buxar, and his intention is not fair and he always

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Patna High Court CR. APP (SJ) No.61 of 2019(27) dt.24-10-2024 4/9

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wanted to grab the share of the Appellant Nos. 1 to 5 and hence with a malafide intention, Gopal Jee Tripathi had filed the present complaint through his own man namely Sheo Muni Mochi @ Sheo Muni Ram and Gopal Jee Tripathi is one of the witnesses to that complaint Case.

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10. It has further been submitted by the learned counsel for the appellants that Gopal Jee Tripathi is a man of criminal nature and he always disturbs the appellants by committing illegal acts against his brothers for which Dumraon Police Station Case No. 165 of 2016 dated 12.06.2016 was also instituted by Appellant No. 2 in which Gopal Jee Tripathi was made an accused and charge sheet dated 23.11.2017 has been submitted against him under Section 448, 341, 323, 389, 504, 34 of the Indian Penal Code and another case bearing Dumraon Police Station Case No. 217 of 2017 was also instituted by Appellant No. 4 against Gopal Jee Tripathi for the offences under Section 448, 341, 323, 380, 354, 504/34 of the Indian Penal Code in which Appellant No. 6 is witness of the said occurrence. Hence, it is quite clear that Gopal Jee Tripathi who said to be Head Pujari of Temple has maliciously instituted the present case against the through Sheo Muni Mochi only Appellants with intention to make pressure over the Appellant

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No. 1 to 5 to withdraw their civil and criminal cases.

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11. It has further been submitted by the learned counsel for the appellants that the Appellant No. 3 is suffering from mental disorder and he is under treatment of central Institute of Psychiatry, Kakey, Ranchi since the year 2017 and he is not able to understand anything, so the allegation against him is totally false therefore, the impugned order it is fit to be set aside.

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12. In support of his submissions, learned counsel for the appellants has also relied upon the judgment of Hon’ble Supreme Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate reported in (1998) 5 SCC 749, and the judgment of this Court passed in the case of S.M. Mahtab Ahmed Vs. The State of Bihar reported in 2016 (4) PLJR 508 and has contended that the learned Magistrate while differing to the final form must give reasons and any order of congnizance differing with the final form bereft of reasons is no order in the eye of law.

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13. Learned counsel for the State and learned Spl. PP for the SC/ST Act opposed the application of the appellants and have submitted that cognizance has rightly been taken and no interference is required in this order.

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14. I have heard and considered the submissions of

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the parties.

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15. From the facts of the case, it is clear that all the accused persons belongs to the same family and the police, after investigation has submitted the final form and found the case to be false. The Special Judge has taken cognizance differing with the police report without assigning any reasons.

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16. The Hon'ble Supreme court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate (Supra) , has held as

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follows:-

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"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge on to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any

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offence is prima facie committed by all or any of the accused."

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17. This Court in its judgment passed the case of

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S.M. Mahtab Ahmed Vs. The State of Bihar (Supra) in paragraph nos. 8 and 9 has held as follows:-

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8. Besides hearing learned counsel for the parties, I have also perused the materials available on record including the Lower Court Record After going through the record. it is evident that the complaint petition was thoroughly investigated by the Investigating agency and thereafter, it was found that it was not a case of criminal offence, rather the investigating officer had noticed that it was a civil dispute Accordingly petitioner's name was not included in column no. 11 of the charge sheet. Meaning thereby that petitioner was not forwarded as accused in the case and final report was submitted. So far as point, which has been raised by the learned counsel for the complainant that even in business transaction, there can be case of criminal offence, this Court is in agreement with his submission, but in the present case, the case was investigated thoroughly by the statutory investigating agency and no sufficient material was found to forward the petitioner to face trial and his name was not incorporated in the charge-sheet as accused. The learned Chief Judicial Magistrate though was competent to pass order of cognizance differing with the police report, it was essential on his part to assign reason succinctly for differing with the police report On perusal of the impugned order the Court is satisfied that no reason has been assigned by the learned Magistrate and as such, on this very point, the order of cognizance is liable to be set aside.

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9. It goes without saying that if an investigating agency after thorough investigation submits final report exonerating accused persons, the said report may not be treated as waste paper Once such report is submitted, the learned Magistrate at the time of differing with the police report is required to assign succinct reason. Since in the order impugned, no reason has been assigned, the Court is satisfied that order impugned is liable to be set aside, particularly; in view of nature of accusation, as has been levelled in the complaint petition.

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18. In the present case the impugned order taking cognizance reads as under:-

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vfHkys[k izLrqr gqvk lqfpdk dh gktjh nh x;h gSA vafre izi= ij lqukA vfHkys[k dk.M nSfudh ,oa 173 na0iz0-l0 ds rgr lefiZr lk{; ds voyksdu ls eSa izkFkfedh ds uketn vfHk;qDr ¼1½ foByukFk f=ikBh ¼2½ xksdqy ukFk f=ikBh ¼3½ yyhr dqekj f=ikBh ¼4½ eatq nsoh ¼5½ vHk; f=ikBh ¼6½ cStukFk ;kno rFkk ¼7½ lqjs”k ;kno ds fo:) /kkjk 147]148]324]504]506 Hkk0n0fo0 ,oa kkjk 3¼1½ (r)(S)(T) (W)(i)(v) vuqlqfpr tk0@tutkfr vR;kpkj vf/kfu;e ds varxZr izFke n`’V;k ekeyk ikrk gwWaA

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vr% mijksDr vfHk;qDrksa ds fo:) mijksDr /kkjkvksa esa vijk/k dk laKku fy;k tkrk gSA dk;kZy; vfHk;qDrksa ds mifLFkfr gsrq lEeu fuxzr djsa fnukad 3-11-18 mifLFkfr gsrqA

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19. Upon perusal of the impugned order, it is clear

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that no reasons has been assigned to differ with the final form and none of the materials of the case diary have been discussed by the Special-Judge.

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Patna High Court CR. APP (SJ) No.61 of 2019(27) dt.24-10-2024 9/9

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20. In these circumstances, when the accusations against the appellant Nos. 2, 3, 5 and 7 are found to be false and the Special Judge concerned has taken cognizance without assigning any reason vide order dated 06.10.2018, the same cannot be sustained.

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21. Accordingly, the order dated 06.10.2018 passed in SC/ST Case No. 47 of 2018 arising out of SC/ST Buxar P.S. Case No. 06 of 2018 by the learned Additional District and Sessions Judge- 1^st , Buxar is hereby set aside.

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22. This appeal stands allowed.

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(Sandeep Kumar, J)

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Harshita/-

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Gokul Nath Tiwari v. the State of Bihar

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Gokul Nath Tiwari v. the State of Bihar

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