SURESH KUMAR PATHAK Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioners, learned A.P.P. for the State and learned counsel appearing for the opposite party No. 2. The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code") has been preferred for quashing of the order dated 16.4.2012 passed by the Chief Judicial Magistrate, Rohtas at Sasaram in Complaint Case No. 1014 of 2009 by which cognizance has been taken against the petitioners under Sections 385/379 of the Indian Penal Code.

(2.) The allegation, as per the complaint, is that the petitioners, being the officers of the Forest Department, had asked for extortion money with regard to a Tractor-Trailer on which stone chips were being carried and upon refusal, the same is said to have been seized illegally and kept in the local Forest Department Office.

(3.) Learned counsel for the petitioners submits that it is not in dispute that the petitioners were acting in their area of jurisdiction and that the act was committed in the capacity of being public servants. Learned counsel submits that the complaint case is by way of a counter case to create a defence since on 24.6.2012, a Tractor-Trailer without having any registration number was caught with stone chips for which no valid papers were produced and accordingly the same was seized and kept in the local Forest Department Office. In this regard, a written complaint was also filed before the Chief Judicial Magistrate, Rohtas at Sasaram which clearly disclosed that no paper was produced with regard to the stone chips and that the vehicle (Tractor-Trailer) did not have any registration number. Learned counsel submits that from perusal of the complaint case it would be obvious that the incident alleged is the same, which is the subject matter of the complaint by the petitioners before the Chief Judicial Magistrate on 24.7.2009. Learned counsel submits that it is obvious that the petitioners were acting in the discharge of their official duty since by virtue of holding the office under the Forest Department, they were authorised to check and seize vehicles carrying stone chips. Learned counsel submits that in view of the same, taking of cognizance without due sanction by the State Government as stipulated under Section 197 of the Code is itself bad in law. Learned counsel submits that the defence of the opposite party No. 2 with regard to such transportation being valid, cannot be believed since in the complaint itself the registration number of the Tractor-Trailer has not been disclosed which proves that the complaint made before the Chief Judicial Magistrate by the petitioners with regard to the seizure is correct. Learned counsel submits that the validity of having a mining licence is not relevant for the present since the allegation is that the Tractor-Trailer was caught without having registration number and also without having valid papers with regard to the stone chips which were found on the Trailer and thus the onus was on the party who was caught in possession of the same to satisfy the authorities (petitioners) and in the absence of the same, if the petitioners took the recourse available to them under the law and also which they were obliged to do as public servants, of seizing the Tractor-Trailer and the stone chips and taking it to the Forest Department Office for safe keeping, can neither be faulted nor any criminal proceeding can be initiated against them. Learned counsel submits that the order taking cognizance is prima facie erroneous for the reason that despite there being no allegation of any theft, cognizance has also been taken under Section 379 of the Indian Penal Code. As far as Section 385 of the Indian Penal Code is concerned, learned counsel for the petitioners submits that the same is also not proper which would be clear from the definition of the term "extortion" as contained in Section 383 of the Indian Penal Code which stipulates that Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion". It is submitted that admittedly in the present case there is only allegation of demand of Rs. 5,000/- which was never paid and thus there cannot be any question of any person delivering any property or valuable security since no money changed hands. It is thus submitted that the petitioners being Government Servants and having performed their duty diligently are being unnecessarily harassed by this vexatious prosecution which has been instituted for wreaking vengeance and settling personal grudge.