Santosh Kumar Jain vs State Of Jharkhand And Ors

Heard learned counsel for the petitioner and the learned A.P.P. for the State.

Petitioner has challenged the order dated 03.12.2018 passed by the Chief Judicial Magistrate, Hazaribagh in Complaint Case No.1058 of 2018, by

which the Court did not issue summons to the accused persons as the Court found no material to proceed against them.

Aforesaid order was challenged before the Additional Sessions Judge XIV, Hazaribagh in Cr. Revision No.1 of 2019 and the revisional Court also

dismissed the revision application, which resulted in filing this criminal miscellaneous petition under Section 482 of the Code of Criminal Procedure.

The petitioner and the opposite party No.6 are cousin brothers. There was a dispute between them in respect of the shop premises, which was

allegedly run by father of the opposite party No.6. A complaint was given to the police, which was registered as Sadar Police Station Case No.1042 of

2016. A proceeding under Section 107 of the Code of Criminal Procedure was initiated. It has also come to the light that on the basis of

instructions/orders from the Sub Divisional Officer, a Magistrate was deputed and thereafter the materials, which were kept in the shop, which the

petitioner claims to be his, were removed. Because of this action, the petitioner herein lodged a complaint case, which was registered as Complaint

Case No.1058 of 2018 under Sections 323, 166, 167, 219 and 500 of the Indian Penal Code. Two witnesses were also produced by this petitioner and

their statement under Section 202 of the Code of Criminal Procedure was recorded. The Magistrate, after going through the records, passed a detailed

order concluding that there are no materials to proceed against the accused persons and thus, passed the impugned order dated 03.12.2018, dismissing

the complaint invoking the provisions of Section 203 of the Code of Criminal Procedure. Aforesaid order was challenged by filing criminal revision

application. The revisional Court also dismissed the revision application.

Learned counsel for the petitioner submits that from perusal of the complaint, an offence is definitely made out and the opposite parties should have

been proceeded against. He submits that the Sub Divisional Officer did not have any power to direct any Magistrate to take possession of any shop or

remove the articles of this petitioner after opening the shop in question. He submits that the Court below, thus, have wrongly addressed the issue while

passing the impugned order.

Learned A.P.P. appearing for the State submits that the dispute was between the cousin brothers. On receiving a complaint from opposite party

No.6 and basing on the said petition, the Sub Divisional Officer appointed Kumud Jha and Madhu Kumari, who are the Executive Magistrates to

maintain law and order and on their direction, the materials of the petitioner, which was illegally kept, was taken out from the shop.

After hearing the parties, I find that a complaint was filed against government officials, who are accused Nos.1 to 4. Accused No.1 is the Sub

Inspector, accused Nos.2 and 3 are Executive Magistrates. Accused No.4 is the Sub Divisional Officer. Accused No.5 is the cousin brother of the

petitioner, whose father was in occupation of the shop in question. Both the Courts below have taken into consideration the fact that these accused

persons, i.e., accused Nos.1 to 4 acted in their official capacity. The revisional Court has taken note of the provisions of law and the judgment of the

Hon’ble Supreme Court and concluded that since the act was in official capacity, Section 197 of the Code of Criminal Procedure would be

attracted and the opposite parties cannot be summoned. Further, the Courts came to the conclusion that this criminal complaint was filed only to

pressurize the Sub Divisional Officer before whom the proceeding under Section 107 of the Code of Criminal Procedure is pending. I also find that

both the Courts have considered the facts and concluded that there are no materials to proceed against the accused persons.

I find no illegality in both the impugned orders. Both the orders are well reasoned and detail speaking orders, which takes into consideration the

statement of the parties. Thus, I am not inclined to interfere with both the orders. This criminal miscellaneous petition is, accordingly, dismissed.