In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.174 of 2009
Avinash Prasad............................ Petitioner
VERSUS
State of Jharkhand and another... Respondents
CORAM:HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner: Mr.Indrajit Sinha
For the State : Mr. R.N.Roy, G.P.III
4. 19.11.09
. On 10.8.2004 when the Forest Guard found that illegal
Mining of Iron Ore has been done in the forest area, bearing plot
no.893 under Thana no.747, leased out to M/s. TISCO situated at
Noamundi by digging pits without taking permission of the Forest
Department, a prosecution report was submitted alleging therein
that said illegal mining has been done by M/s. TISCO, for which its
Managing Director, Abinash Prasad is responsible. On enquiry,
when the allegations were found to be true, the offence report
was filed before the court of learned Chief Judicial Magistrate,
Chaibasa, who took cognizance of the offence under Section 33 of
the Indian Forest Act against the petitioner on 8.4.2005.
Accordingly, summons issued by the court was received by him.
Thereafter an application was filed under Section 205 of the Code
of Criminal Procedure on 23.6.2005, upon which an order was
passed on 12.9.2005 whereby personal appearance was
dispensed with on the condition that the petitioner would appear
physically at the stage of explanation of the accusation and at the
stage of recording statement under Section 313 of the Code of
Criminal Procedure. On the next date i.e. on 29.9.2005 fixed in the
case an application was filed on behalf of the petitioner under
Section 251 praying therein that substance of accusation be
explained to accused through his Lawyer. The case was adjourned
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to some other date for appearance of the petitioner. However, in
the meantime, a writ application bearing W.P.(Cr.) No.282 of 2005
was filed in this Court by the petitioner challenging the order taking
cognizance on amongst other on the ground that the petitioner has
never committed any offence under Section 33 of the Indian Forest
Act, rather it was the other person who committed mischief by
extracting iron ore from the leasehold area of the petitioner and
for that, the petitioner had even lodged a case against the named
accused. However, the said writ application was allowed to be
withdrawn by this Court, vide its order dated 16.5.2006 giving
liberty to the petitioner to raise all the points at the time of framing
of charge. After very long gap, an application was filed for
discharge before the court below taking the same ground that it
was not the petitioner, who did commit offence as alleged, rather
one Mangal Singh Soren has committed all the mischief against
whom, the petitioner had lodged information. The said application
was dismissed by the learned Chief Judicial Magistrate, Chaibasa,
vide its order dated 4.3.2009 holding therein that whatever point
has been taken for discharge, that can be looked into only during
trial and that there has been no provision under the Code to
discharge an accused in a summons case triable by the Magistrate
and as such, petition filed for discharge was held to be not
maintainable.
Being aggrieved with that order, the petitioner has filed the
instant writ application.
Mr. Indrajit Sinha, leaned counsel appearing for the
petitioner submits that learned Chief Judicial Magistrate, keeping in
mind the provision as contained in Section 258 of the Code of
Criminal Procedure, did hold that there has been no provision
under the Code to discharge a person, who is an accused in a
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summons case instituted upon a complaint but the learned
Magistrate misdirected himself in holding so as the complaint which
has been referred to in Section 258 would always mean that
complaint in which court has taken cognizance after examining
complainant under Section 200 or after postponement of the issue
of process summon is issued to a person under Section 204 of the
Code of Criminal Procedure and as such, it was well within the
domain of leaned Magistrate to pass order relating to discharge or
dropping of the proceeding.
Learned counsel further submits that as per the case of the
prosecution disclosed in the offence report and even in the
prosecution report that illegal mining was done by the Company,
namely, M/s. TISCO petitioner being Managing Director in that
event, in absence of any allegation, cannot be held vicariously
liable, specially when the statute, i.e, Indian Forest Act is silent
over fixing the vicarious liability upon the Managing Director and
as such, prosecution is bad, in view of the decision of the Hon’ble
Supreme Court rendered in a case of Maksud Saiyed vs. State
of Gujarat and others [(2008) 5 SCC 668]. Thus, entire
prosecution is fit to be quashed.
As against this, learned counsel appearing for the State
submits that on account of the fact that the petitioner had earlier
withdrawn the writ application, the plea which had been taken
presently and was also available earlier, cannot be allowed to be
agitated again and that the court below is absolutely justified in
holding that there has been no provision for discharge of a person
who is an accused in a summons case arising out of a complaint
case and as such, the instant application is fit to be dismissed.
The submission advanced on behalf of the petitioner that the
‘complaint’, reference of which is there in Section 258 of the Code
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of Criminal Procedure, relates to that complaint upon which
Magistrate has taken cognizance after taking statement of the
complainant or after the postponement of the issue of process
under Section 204 of the Code of Criminal Procedure is devoid of
any substance, in view of the definition of ‘complaint’ given under
section 2(d) of the Code of Criminal Procedure which reads as
under:
“2(d) “Complaint” means any allegation made orally
or in writing to a Magistrate, with a view to his
taking action under this Code, that some person,
whether known or unknown, has committed an
offence, but does not include a police report.”
Thus, the definition of the complaint does suggest that the
complaint can be made either orally or in writing. If the complaint
is made in writing by a public servant acting or purporting to act in
discharging of his official duties, the Magistrate in terms of sub-
section (a) of Section 200 need not to examine him on oath. If the
complaint in writing does constitute offence, the Magistrate would
competent to take cognizance under Section 190(1)(a) of the Code
of Criminal Procedure whereas if oral or written complaint is made
by a person in his personal capacity and not in official capacity, the
court may take cognizance after examining the complainant or may
postpone the issue of the process but in both the cases, it would
be a complaint and as such, the word ‘complaint’ used in Section
258 of the Code of Criminal Procedure cannot have two different
connotation for the purpose of Section 258 of the Code of Criminal
Procedure and in that view of the matter, the trial court appears to
be quite justified in holding that Code of Criminal Procedure never
contemplates dropping of the proceeding or discharge of a person
accused in a summons case arising out of a complaint case. In this
context, case of Adalat Prasad vs. Rooplal Jindal and others
[(2004) 7 SCC 338] and also a case of Subramanium
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Sethuraman vs State of Maharashtra and another [ 2005
SCC (Cri) 242] be referred to wherein it has been held by the
Hon’ble Court that in a summon case it is not open to the accused
person to seek discharge.
Coming to other point, it does appear that the petitioner had
earlier challenged the order taking cognizance on several grounds
which application was dismissed on its withdrawal on behalf of the
petitioner and under this situation, the point raised on behalf of the
petitioner that in absence of any allegation on the part of the
petitioner of committing offence, the petitioner cannot be held
liable vicariously for the offence committed by the Company does
not deserve to be adjudicated in this application, rather it would be
open for the petitioner to raise all these points in course of trial.
Accordingly, I do not find any merit in this application.
Hence, it is dismissed.
( R.R. Prasad, J.)
ND/