Anand Kumar Paswan vs State Of Jharkhand

Sanjay Kumar Dwivedi, J

Heard learned counsel for the petitioner and learned counsel appearing for the respondent State.

The prayer in the writ petition is made for recalling the order dated 15.06.2023 passed in Cr.M.P. No.3367 of 2013.

Mr. K.K. Jha Kamal, learned counsel appearing for the petitioner submits that if a mistake in law has been made either by the lawyer or by the Court, the Court is competent to recall the order. He submits that by order dated 15.06.2023 passed in Cr.M.P. No.3367 of 2013, the entire criminal proceeding has been quashed. He submits that on that day, the lawyer of the O.P. No.2 has not appeared and in his absence the said order has been passed and in view of that the opportunity was not provided to the petitioner, who was the O.P. No.2 in Cr.M.P. No.3367 of 2013. He further submits that if a mistake in law has been made either on behalf of the lawyer or by the Court, the Court is competent to recall the same and to buttress this argument, he relied in the judgment of Hon’ble Supreme Court as reported in AIR 1990 SC 1984.

Based on the aforesaid judgment, Mr. Jha submits that the said order may kindly be recalled for the ends of justice. He further submits that in view of the order of Hon’ble the Supreme Court, the objection of the office is not sustainable with regard to the maintainability of the present Cr.M.P. On this ground, he submits that the said order may kindly be recalled.

Learned counsel appearing for the State opposed the prayer on the ground that by a reason order the said Cr.M.P. was allowed by order dated 15.06.2023. There was no apparent error and full opportunity was provided to the arguing counsel for the opposite party No.2 in spite of that he has not argued the matter as such there is no mistake of law on the part of the Court. He submits that for recalling the said order, further reasoned order is required to be passed. In view of that in a criminal case restriction is made in the light of Section 362 of Cr.P.C. On this ground, he submits that this petition may kindly be dismissed.

In view of the above submission of learned counsel appearing for the parties, the Court has gone through the connecting record of Cr.M.P. No.3367 of 2013 which was placed along with the present petition and finds that in that case the learned counsel has already appeared by way of filing vakalatnama. On 18.04.2023, he has not appeared when the matter was adjourned with a view to provide one more opportunity. On 15.06.2023, when the matter was taken up again on repeated calls, nobody has responded on behalf of the opposite party No.2, as such the petition was heard in absence of the opposite party No.2. This is not a case that in absence of service of notice, the said order was  passed.  The  notice  was  validly  served  on  O.P.  No.2  and thereafter the learned counsel appeared on behalf of opposite party No.2 and on 18.04.2023, he has not appeared and the matter was adjourned to provide one more opportunity and thereafter it was heard on merit on 15.06.2023 and on that day again the counsel for O.P. No.2 did not appear.

On 15.06.2023, the following order was passed in Cr.M.P. No.3367 of 2013:

On 18.04.2023 nobody appeared on behalf of the O.P. No. 2 and the matter was adjourned with a view to provide one more opportunity to the O.P. No.2. Today, again on repeated calls, nobody appeared on behalf of the O.P. No.2 that is why the matter is being heard on merit in absence of the O.P. No.2.

Heard Mr. Pandey Neeraj Rai, learned counsel for the petitioner and Mr. Ravi Prakash, learned counsel for the State.

This petition has been filed for quashing the entire criminal proceeding including order taking cognizance dated 22.07.2013 as well as orders dated 18.09.2013 and 19.11.2013 in connection with Protest Complaint Case No. 1029 of 2012, pending in the Court of learned Judicial Magistrate Ist Class, Hazaribagh or successor court.

The complaint petition has been filed alleging therein that initially the complainant, being the President of Keredari Prakhand Scheduled Caste Avom Scheduled Tribe Matsya Jivi Swavlanbi Sahkari Samiti, Keredari, made a written report purportedly dated 10.09.2011 before the Officer Incharge of the SC/ST Police Station, Mufassil Sadar, Hazaribag alleging abuse as Harijan, threat of abduction & killing and forcing signature on bearer cheque cash book register for illegal withdrawal from the Bank of the amount of the work done by the Samiti through middlemen and taking bribe @35% of the sanctioned amount for the Scheme and for conspiracy of blacklisting the society. Accordingly, on the basis of the written report, actually made on 30.10.2011, an FIR was registered as Hazaribag SC/ST P.S. Case No. 22/2011 dated 30.10.2011 against Sri Manoj Kumar Thakur, Fisheries Officer-cum-Executive Officer, Hazaribag and the petitioner Assistant Engineer of 2 the Fisheries Department under Sections 420, 467, 468, 471, 504 I.P.C. read with section 3 (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Mr. Pandey Neeraj Rai, learned counsel for the petitioner submits that F.I.R. was earlier registered against the petitioner which was investigated by the police and final form has been submitted in which the petitioner has not been sent up for trial. He submits that on the protest petition learned court has taken cognizance under sections 409, 420, 467, 504, 506 of I.P.C. and under section 3 (1) (x) & (xv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He further submits that this case has been filed as counter blast case in view of the fact that the petitioner and other officials of the Fisheries Department have lodged two cases against the O.P. No.2 for misappropriation of government money. He further submits that in that case chargesheet has been submitted against the O.P. No. 2 and cognizance has been taken wherein the present case lodged by the O.P. No.2 against the petitioner the police has submitted final form in which the petitioner has not been sent up for

trial however the learned court has taken cognizance on

the protest petition. He submits that this case has been maliciously filed against the petitioner. He further submits that ingredients of SC/ST Act is not attracted as the caste of the complaint as well as petitioner has not been disclosed in the protest petition and that is how the police has not sent up for trial the petitioner. He further submits that earlier the O.P. No.2 tried to manipulate the proceeding and one of the witness has been examined in the Court who was found recording the proceeding by hidden camera and her evidence was dropped however, later on she was again examined as another witness. On these grounds, he submits that the entire criminal proceeding may be quashed.

Mr. Ravi Prakash, learned counsel for the State submits that the learned court has taken cognizance on the protest petition and the final form is in favour of the petitioner.

In view of above submission of the learned counsel for the parties the court has gone through the materials on record and contents of protest petition and finds that caste of complaint as well as petitioner has not been disclosed in the protest petition that is 3 one of the ingredient to make out case under the SC/ST Act as has been held by the Hon’ble Supreme Court in the case of “Gorige Pentaiah Vs. State of Andra Pradesh” (2008) 12 SCC 531.

Further against the O.P. No.2, two F.I.Rs. have been lodged by the Fisheries Department for misappropriation of government money. The case of the petitioner was investigated by the police in which the petitioner was not sent up for trial and on the protest petition learned court has taken cognizance.

In view of above facts, it is crystal clear that this case has been maliciously lodged by the O.P. No.2 against the officials of Fisheries Department. To continue the proceeding to be allowed will amount the abuse of process of law.

In view of above facts, reasons and analysis, entire criminal proceeding including order taking cognizance dated 22.07.2013 as well as orders dated 18.09.2013 and 19.11.2013 in connection with Protest Complaint Case No. 1029 of 2012, pending in the Court of learned Judicial Magistrate Ist Class, Hazaribagh or successor court, is quashed.

Accordingly, this petition is allowed and disposed of. Pending I.A., if any, stands disposed of. Interim order is vacated.

In view of the above order, it is crystal clear that this Court has discussed the law and the reason of quashing of the entire criminal proceeding and in view of that there is no apparent error or mistake of law on the part of the Court.

In the light of judgment of Hon’ble Supreme Court in the case of M.M. Thomas versus State of Kerala reported in (2000) 1 SCC 666, it is evident that High Court has power to review its own judgment and order if there is error in its own Judgment/Order, if there are errors apparent on the face of the record. Further in the light of order of Hon’ble Supreme Court in the case of K.C. Thapar & Brothers Versus State of Uttar Pradesh reported in (1976) 4 SCC 257 that if an apparent error means a patent mistake; an error which one could point out without any elaborate argument. An error apparent on the face of the record must strike one on ‘mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions and if such a situation is there, the Court can recall the order. This case is under Section 482 of Cr.P.C. and if the apparent error is not there or even a mistake of law is not there that can’t be recalled. Further the Court’s hand is restricted in the light of Section 362 of Cr.P.C. which speaks of Court not to alter the judgment.

In view of above, the Court finds that there is no reason to recall or modify the order dated 15.06.2023 passed in Cr.M.P. No.3367 of 2023, as such this petition is dismissed.

Pending petition, if any, is also disposed of.