BIDYA LAKHAN BHAGAT Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE present application has been preferred under 378 of the Code of Criminal Procedure for getting Special Leave to Appeal against the judgment and order dated 17th July 2012 passed by the learned Chief Judicial Magistrate, Latehar in Complaint Case No.212 of 2008/Trial No. 222 of 2012 whereby the complaint case filed by the petitioner has been dismissed.

(2.) THE complaint case was filed by the complainant -petitioner before the Chief Judicial Magistrate, Latehar for allegedly committing an offence under Section 420 of the Indian Penal Code against the Opposite Party No. 2. The case of the complainant -petitioner, as per the complaint petition, is that opposite party No. 2 requested the complainant -petitioner to offer himself as a guarantor for the loan for which he had applied to the Jharkhand State Adivasi Co -Operative Development Corporation Ltd., Daltonganj to the tune of Rs. 2,96,548/ - and the complainant -petitioner in good faith signed the agreement paper as the guarantor for the loan amount. Subsequently, the corporation issued a notice to the complainant -petitioner shifting the liability of payment of loan amount of the opposite party no. 2 upon him. Further case of the complainant -petitioner is that opposite party no. 2 has committed breach of trust of agreement.

(3.) COUNSEL for the State -A.P.P. has taken a preliminary objection as to statutory provision is provided under Section 372 Code of Criminal Procedure, but Special Leave to Appeal may not be granted to the petitioner and let the right of statutory appeal be exhausted and thereafter they may come to this Court. The learned A.P.P. also submitted that the provision of Code of Criminal Procedure has been amended with effect from 31st December, 2009 based upon 154th report of the Law Commission of India. It is submitted by the A.P.P. that whenever statutory provision of preferring an appeal is given by law, the remedy must be exhausted first and, thereafter, they can approach this Court. The learned A.P.P. has also taken analogy from writ petition preferred under Article 32 of the Constitution of India for violation of fundamental rights and in those cases, normally the Hon'ble Supreme Court is sending the petitioner to the concerned High Courts under Article 226 of the Constitution of India. Similarly, against the judgment and order of learned Single Judge of the High Court, whenever Letters Patent Appeal is tenable, normally Special Leave to Appeal under Article 136 of the Constitution of India is not granted. Similarly, counsel for the State has relied upon decisions rendered by the Full Bench of Hon'ble Patna High Court in Syed Zafrul Hassan Vs. State (F.B.) reported in 1986 PLJR, 274 that whenever there is a concurrent jurisdiction for grant of anticipatory bail i.e. both by the Sessions Court as well as by the High Court, normally the anticipatory bail applications should be preferred before the Sessions Court. In view of this analogy, it is submitted by the counsel for the State that in the facts of the present case, the parties are not remedyless. They have a right to prefer a statutory appeal against the very judgment of the Chief Judicial Magistrate, Latehar before the Sessions Court, Latehar. Thus, the Special Leave to Appeal may not be granted to the petitioner. Counsel for the State has also pointed out that whenever victim is also the complainant himself, then in all such cases statutory provision of Section 372 of the Code of Criminal Procedure should be resorted to and whenever the complainant is not the victim like the cases in which the complainant is Income Tax Officer or the officer of the Labour Department, or the Officer of the Food Adulteration Department, in all those cases, complainant and the victims are different persons, in those cases, instead of preferring an appeal under Section 372 of the Code of Criminal Procedure, they can prefer an application under Section 378(4) of the Code of Criminal Procedure for getting Special Leave to Appeal. But whenever the complainant and the victim are the same person, then statutory right of preferring appeal must be availed first and in those circumstances, without preferring an appeal under Section 372 of the Code of Criminal Procedure, Special Leave to Appeal under Section 378(4) of the Code of Criminal Procedure may not be entertained by this Court.