Birendra Kumar Singh And Ors vs State Of Jharkhand And Ors

Petitioners, by filing this writ application under Article 226 of the Constitution of India, pray for quashing the order dated 07.02.2017 passed by the

Judicial Magistrate, Ranchi in Complaint Case No.237 of 2002, whereby their application under Section 245(2) of the Code of Criminal Procedure for

discharge has been rejected. Petitioners further pray to quash the order taking cognizance dated 04.11.2003, passed by the Judicial Magistrate, Ranchi

in Complaint Case No.237 of 2002, by which cognizance of offence under Sections 447, 379, 427 of the Indian Penal Code has been taken against the

petitioners.

Learned senior counsel appearing on behalf of the petitioners submit that the order taking cognizance is absolutely bad as the State of Jharkhand

has got no jurisdiction to issue the letter No.2261 dated 29. 09.2001, which is the basis of taking cognizance of the offence. He submits that merely on

the instructions of the superior authorities, the petitioners had gone to take possession of the mortgaged assets for which this false criminal case has

been lodged. He submits that all these facts have not been taken into consideration while disposing of the application under Section 245(2) of the Code

of Criminal Procedure. He submits that the property is a private property and does not belong to any of the undertakings of the State, thus, the letter

No.2261 dated 29.09.2001 has got no application. He submits that since the property was hypothecated to Bihar State Financial Corporation, having its

headquarters at erstwhile State of Bihar and was not within the territorial jurisdiction of Jharkhand, thus, the letter dated 29.09.2001 could not have

been issued. He submits that the Court below should have considered the aforesaid position of law while deciding the application under Section 245(2)

of the Code of Criminal Procedure. On the aforesaid ground also, the petitioner submits that the order taking cognizance is absolutely bad.

Learned A.P.P. appearing for the State opposes the prayer of the petitioners and submits that the petition filed under Section 245(2) of the Code of

Criminal Procedure is not maintainable. He submits that admittedly, application for discharge under Section 245(1) of the Code of Criminal Procedure

was earlier dismissed up to the High Court and thus, there is no scope for invoking provision under Section 245(2) of the Code of Criminal Procedure.

He submits that as the High Court on earlier occasion has found that there are sufficient materials to frame charge, thus, the order taking cognizance

cannot be quashed.

To decide this particular case, it is not necessary to discuss the detail facts of the prosecution case. A complaint was lodged being Complaint Case

No.237 of 2002. After following the procedure of law, on 04.11.2003, learned Judicial Magistrate, Ranchi took cognizance of the offence under

Sections 447, 379 and 427 of the Indian Penal Code and issued processes against the accused. The said order was not challenged before any Court.

Thereafter, the petitioners filed an application under Section 245(1) of the Code of Criminal Procedure. The same was dismissed by the Judicial

Magistrate. Challenging the said order, a petition was filed being Cr. M.P. No.260 of 2009, which was also rejected by the High Court on 27.06.2012.

After disposal of the criminal miscellaneous petition by the High Court, the petitioners again tried to reopen the issue by filing a petition under Section

245(2) of the Code of Criminal Procedure. The Trial Court held that this application is not maintainable, as because the High Court has already

decided on merits the application filed by the petitioners under Section 245(1) of the Code of Criminal Procedure.

When I go through the impugned order, I find that the learned Court below, after considering the judgment on the issue, namely, Cricket Association

of Bengal & Others versus State of West Bengal and others reported in 1971 Cr L J 1432; has held that after dismissal of a petition under Section

245(1), petition under Section 245(2) of the Code of Criminal Procedure is not maintainable. From bare perusal of this provision of Code of Criminal

Procedure, I find that if an application under Section 245(1) of the Code of Criminal Procedure is dismissed on merits, second application under

Section 245(2) of the Code of Criminal Procedure would not be maintainable. The Court below has rightly applied the law in coming to a conclusion

that the second application of the petitioners under Section 245(2) is not maintainable when their application under Section 245(1) of the Code of

Criminal Procedure was dismissed by this High Court.

Further plea of the petitioner that letter No.2261 dated 29.09.2001 is bad in law cannot be decided in this criminal writ application. I find that the

petitioners have never challenged the validity and legality of the said letter. Until and unless the said instruction of the State of Jharkhand is set aside,

the same is binding. The said letter is not under challenge in this writ application too.

Furthermore, when this High Court in Cr. M.P. No.260 of 2009 has held that there are sufficient materials to frame charge against the petitioners,

this Court cannot reopen the issue again and decide on the merits of the order taking cognizance.

Thus, I find no merit in this writ application. The same is, accordingly, dismissed.