GANGANATH JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Five petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 12.7.1999 passed by Chief Judicial Magistrate, Madhubani in C.R. No.814 of 1994. By the said order the learned Magistrate has taken cognizance for the offences under sections 420 and 406 of the Indian Penal Code. The petitioners have further prayed for quashing of the order dated 5.8.1999 passed in Cr.Revision No.419 of 1999 whereby the learned Sessions Judge, Madhubani has rejected the revision petition filed by the petitioners against the order of cognizance.

(2.) Short fact of the case is that opposite party no.2 filed a complaint Petition vide Complaint Petition No.773 of 1993 alleging therein that the petitioners, who were Headmaster, teacher and employee of the Anand Sanskrit Vidyalaya, Mirzapur, Raj Nagar, had misappropriated a sum of Rs.five lakhs from the school fund. Petitioner no.1 was described as a Headmaster, petitioner nos.2, 3 and 4 were described as teachers and petitioner no.5 was described as a Clerk of the said school. After filing the complaint petition, the same was referred to the police for registering first information report and investigating the case under section 156(3) of the Code of Criminal Procedure. Thereafter, first information report vide Raj Nagar P.S. Case No.366 of 1994 was registered for the offences under sections 420 and 406 of the Indian Penal Code. However, after investigation, the allegation in the complaint petition was not found to be true and, as such, final form was submitted. The opposite party no.2 had filed a protest petition. After submission of the final form, the protest petition was treated as a complaint petition and in the said complaint the opposite party no.2 was examined on solemn affirmation and in support of the complaint case two witnesses were also examined. Thereafter, by the impugned order the learned Magistrate took cognizance for the offence under section 420 and 406 of the Indian Penal Code and directed for issuance of process for securing attendance of the accused persons. Aggrieved with the order of cognizance, the petitioners filed a revision vide Cr.Revision No.419 of 1999 which stood rejected on 5.8.1999. After rejection of the revision petition, the petitioners have approached this court by filing the present petition. This court by order dated 29.9.1999 while issuing notice to opposite party no.2 had directed that in the meanwhile further proceeding in connection with Cr.Revision No.419 of 1999 arising out of C.R. No.814 of 1994 pending in the court of C.J.M., Madhubani shall remain stayed. Subsequently by order dated 7.2.2000 this application was admitted and this court directed that pending disposal of this application further proceeding in Cr.Revision No.419 of 1999 pending in the court of Sessions Judge, Madhubani, shall remain stayed and order of stay is still continuing.

(3.) Mr. Vishwa Nath Prasad Sinha, learned senior counsel appearing for the petitioners, while challenging the order of cognizance as well as order of revisional court, has argued that the complaint petition itself does not disclose the commission of any offence. While placing the complaint petition, he has argued that simply a bald allegation of misappropriation of about rupees five lakhs was levelled against the petitioners who are headmaster, teachers and the employee of the school. He further submits that school in question was not a government school nor the complainant was having any connection with the affairs of the school in question and, as such, the complainant was having no locus to file the complaint petition. Learned counsel for the petitioners further argued that while the petition was filed by opposite party no.2, five persons were shown as witnesses to the occurrence. They were Jagdish Yadav, Swaynwar Yadav, Kishun Yadav, Karo Yadav and Ashok Kumar. However, after submission of the final form by the police when protest petition was filed, to the reasons best known to the complainant, the complainant withdrew the name of three witnesses. He incorporated only two names, who were earlier cited namely, Kishun Yadav and Ashok Kumar. However, while dropping the name of Jagdish Yadav, Swaynwar Yadav and Karu Yadav, three new names were substituted i.e. Ganga Jha, Laxman Mishra and Bijay Shankar Pandey. Accordingly, learned counsel for the petitioners submits that this shows that when after being satisfied that three witnesses, who were cited as the witnesses in earlier complaint petition, were not going to give false evidence, the complainant, in his protest petition, dropped the names of those witnesses and in their place names of three other witnesses were substituted. He has mainly argued that bare perusal of the complaint petition itself makes it clear that no specific averment has been made regarding commission of offence as alleged and in absence of any specific averment disclosing commission of offence, there was no point for further proceeding with the present case. He has also referred to the evidence of three witnesses, copy of which has been brought on record as annexures- 3, 4 and 5. While referring the evidence of three witnesses he submits that while in the complaint petition it was alleged that the accused persons had misappropriated about rupees five lakhs of the school in question but during deposition the witnesses have vaguely said that the accused persons had misappropriated the proceeds which were incurred from 76 Bighas of land of the school. Accordingly, he argued that even on examination of evidences no offence is made out.