HARI SHANKAR PRASAD, J. - (1.) THIS application under Article 226 of the Constitution of India has been filed for quashing the order dated 24.10.2003 passed in Cr. Revision No. 72 of 2002, whereby and whereunder the learned Additional Judicial Commissioner, FTC VI, Ranchi allowed the revision and set aside the order taking cognizance dated 18.7.2002.
(2.) FACTS leading to the filing of this application are that on 7.3.2002 at about 12 noon the police personnel of Jagarnathpur P.S. along with accused persons 1 to 4 forcibly entered into the house of the complainant after breaking open the rooms of the house and removed the household properties of the complainant. It is alleged that at that time Uma Shankar Singh and Shatrughan Pandey were in the house of the complainant, who were forcibly removed from the house by the police and accused 1 to 4. It is alleged that police personnel did not give any information to these persons regarding forceful entry into the house and removal of property belonging to the complainant. The accused 1 to 4 conspired with the police personnel of Jagarnathpur P.S., who were shown accused Nos. 5 to 8 in the complaint petition and all the accused persons illegally removed the house hold properties of the complainant. It is said that accused 1 to 4 are tenants of the complainant and complainant asked them to vacate the house which is under their illegal tenancy and accused persons instead of vacating the premises of the complainant conspired with accused Nos. 5 to 8 with a purpose of constructing a wall. The complainant was out of Ranchi and when he returned back, he came to know about the incident and he went to the Court to enquire into the matter and came to know there that a case was lodged by the accused at Jagarnathpur PS in which Jagarnathpur Police has obtained processes under Sections 82 and 83, Cr PC for attachment being Gagarnathpur P.S. No. 158/2001. The complainant obtained a list of attachment of the properties from the Court and came to know that valuable articles and small blue box containing Rs. 1,07,500.00 has not been entered into the list of attachment of property submitted in the Court. Uma Shankar Singh and Satrughan Pandey informed him that blue bag containing money was personally removed by Sri Anil Kumar Devedi, Officer -in -charge of Jagrnathpur P.S., who removed the same during operation of attachment. On approaching of the relatives of the complainant, the officer -in -charge Sri Anil Kumar Dewedi told them that first they should get bail of the complainant then the bag shall be returned to the complainant. The complainant was released on bail in Jagarnath P.S. Case No. 158/2001 and approached Sri Anil Kumar Dewedi and submitted bail order of the Court to him. The Officer -in -charge torn down the bail order and threatened the complainant not to raise any question of money otherwise he will be sent to jail in another case. New tyres and battery of his car have been removed and in their places old tyres and battery were replaced. The matter was reported to the SSP, Ranchi, who assured them that after bail of the complainant the articles attached shall be released to him by the Court and the valuable articles including the blue bag containing Rs. 1,07,500.00 , which was not entered into the list of attachment by the police then how the Court will release the same. The SSP, Ranchi neither enquired into the matter nor lodge any case against the offender. When no action was taken by the SSP, Ranchi then complainant filed a complaint case being Complaint Case No. 290/2002 and after evidence taken by the trial Court on SA, cognizance under Sections 323, 380, 409 and other sections has been taken by order dated 18.7.2002. Being aggrieved by the order taking cognizance, the accused persons preferred Cr. revision No. 72/2002 and the Additional Judicial Commissioner by order dated 24.10.2003 allowed the revision and set aside the order taking cognizance dated 18.7.12002.
(3.) LEARNED counsel for the petitioner submitted that the learned trial Court had taken positive view and on the basis of S.A. and inquiry held under Sec.202 Cr PC, came to a finding that prima facie case is made out and thereafter took cognizance by order dated 18.7.2002, but the learned revisional Court took erroneous view of the matter and after discussing evidence threadbare, came to a finding that cognizance taken by the learned Court below was not proper and misconceived and, thereby set aside the order taking cognizance. It was further pointed out that basic principle of proceeding in the matter is that the Court has to see whether a prima facie case is made out or not and on the basis of evidence of witnesses recorded under Sec.202 Cr PC, a prima facie case was made out on behalf of the petitioner and, therefore, the learned Court below took cognizance on the basis of evidence that came after inquiry, but besides that, there was no material before the learned revisional Court and the learned revisional Court ought to have dismissed the revision but unfortunately, the revisional Court took the view otherwise and set aside the cognizance order. It was further pointed out that from the materials on record, a prima facie case is made out and whatever defence the accused persons were taking, that could have been taken at the stage of trial and not at the inquiry stage. It has been further submitted that from the materials on record, it has been established by the complainant -petitioner that one yellow bag was taken away by the officer -in -charge, namely, Anil Kumar Dwivedi, but that bag was not mentioned in the list of articles seized from the residence of the complainant -petitioner and when this fact became clear after surrender and getting bail, the complainant -petitioner prayed for release of the articles seized in connection with execution of process under Sections 82 and 83 of the Code of Criminal Procedure, then it transpired that yellow bag which contained a sum of rupees one lakh and odd Was not shown in the list of articles seized and when the petitioner -complainant demanded the same from the Officer -in -charge, then he was threatened with dire consequences and when the matter was brought to the knowledge of S.P. but even then no action was taken. Then seeing no option left, the complainant -petitioner filed this complaint case with the allegation which have been substantiated in the statements of witnesses recorded under Section 202 Cr PC.;