TILAK MANJHI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application by petitioners has been filed for cancellation of bail granted to opposite party No. 2 by Incharge Chief Judicial Magistrate, Gaya on 3.6.2004 in Alipore Police Station Case No. 4 of 2004 under Section 7 of Essential Commodities Act (In short "E.C. Act") and under Sections 409/34 of Indian Penal Code (In short "IPC").

(2.) Brief facts of the case are that on the basis of a written report of Block Development Officer, Tekari forwarding the report of Director, Accounts, Public Administration and Self Employment, District Rural Development Organisation, Gaya, a first information report under Sections 409/34 of IPC and Section 7 of EC Act was drawn against opposite party No. 2 and co-accused Kulwansh Das. The allegation is that co accused Kulwansh Das, a fair price dealer was supplied 220 quintals of rice for the years, 2001-02 and 2002-03 under Rural Employment Scheme. Shri Shiv Kumar Das, son of co accused Kulwansh Das in writing admitted that entire 220 quintals of rice was kept in the Panchayat Bhawan of Bishunpur and key was left with opposite party No. 2 and he also admitted that entire rice, instead of distributing it among labourers in connivance with opposite party No. 2, was sold in black marketing. Director, Public Accounts and Self Employment, District Rural Development Organization, Gaya perused the stock register of co-accused Kulwansh Das and found that receipt of rice was mentioned there but its distribution was not shown in the register and son of Kulwansh Das produced photo copy of a receipt bearing signature of opposite party No. 2 admitting the receipt of 102 quinatals of rice. The impugned order shows that opposite party No. 2 surrendered on 3.6.2004 before the Court of Incharge Chief Judicial Magistrate where considering the argument advanced on behalf of opposite party No. 2 that Section 7 of EC Act is bailable and Section 409, IPC is not attracted against him, he was ordered to be released on bail on his furnishing bonds of Rs. 5,000/- with two sureties of the like amount each. The case of petitioners is that petitioners No. 1,3, 4 and 10 are labourers, petitioner No. 2 is farmer and petitioners No. 5, 6, 7, 8 and 9 are Ward Members of Chaita Panchayat and on 3.6.2004, Chief Judicial Magistrate was on leave and Incharge Chief Judicial Magistrate was holding the Court of Chief Judicial Magistrate and the submission made on behalf of opposite party No. 2 that Section 7 of EC Act is bailable is not correct because all offences under Section 7 of EC Act are non-bailable as enumerated under Section 10A of EC Act, 1955 and finding of the Court below is not in consonance with the provisions of EC Act and impugned order granting bail to opposite party No. 2 on the wrong assumption that Section 7 of EC Act is bailable is an abuse of process of Court and is fit to be set aside. About acceptance of plea of opposite party No. 2 before the Court below that Section 409 of IPC is not attracted in this case, the case of petitioners is that this section is also attracted against opposite party No. 2 because opposite party No. 2 is duly elected Mukhiya of Chaita Panchayat and he had received 220 quintals of rice for its distribution among labourers but he sold the same in black marketing and this act on his part amounts to criminal breach of trust. The petitioners have further stated that the impugned order further shows that learned Special Public Prosecutor who appeared on behalf of the State conceded to the submissions made on behalf of opposite party No. 2 in a surrender-cum-bail petition but then only Advocate General is empowered to give any concession and in the instant case, no instruction was given to Special Public Prosecutor to concede. On the aforesaid grounds, petitioners have prayed for cancelling the bail of opposite party No. 2 granted to him on 3.6.2004 by Incharge Chief Judicial Magistrate, Gaya.

(3.) Opposite party No. 2 has appeared and has filed counter-affidavit opposing the prayer of petitioners on the ground that the petitioners have to locus standi to maintain the present application for cancellation of bail because they are neither the informant nor witnesses in this case and they are in no way concerned with the prosecution case. According to opposite party No. 2, petitioners are tools in the hands of political party, rival to opposite party No. 2 because opposite party No. 2 is an elected Mukhiya and the present application has been filed at the behest of the person who lost the Mukhiya's election. The further case of opposite party No. 2 is that 102 quintals of rice was in stock and rest foodgrains was distributed against the food for work scheme and petitioner is an old man aged about 70 years and has an unblemished career of social worker and public representative as he is the Mukhiya of the Gram Panchayat from the very inception of Panchayat till date and he has never lost the election. Opposite party No. 2 has prayed for refusing the prayer of petitioners.