R.R. Prasad, J.@mdashOn 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 u/s 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 u/s 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 u/s 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 u/s 251 praying therein
that substance of accusation be explained to accused through his Lawyer. The case was adjourned 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 u/s 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 However, the said writ application was allowed to be withdrawn by this Court, vide its order dated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 mischiefs 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.
2. Being aggrieved with that order, the petitioner has filed the instant writ application.
3. Mr. Indrajit Sinha, learned 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 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 u/s 200 or
after postponement of the issue of process summon is issued to a person u/s 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.
4. 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, Thus, entire prosecution is fit to be quashed.
5. 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.
6. The submission advanced on behalf of the petitioner that the ''complaint'', reference of which is there in Section 258 of the Code 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 u/s 204 of the Code of Criminal Procedure is devoid of any substance, in view of the definition of
''complaint'' given u/s 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.
7. 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 u/s 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 connotations 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, and also a case of Subramanium Sethuraman v. State of Maharashtra
and Anr. 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 on discharge.
8. 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.
9. Accordingly, I do not find any merit in this application. Hence, it is dismissed.