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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SANJAY KUMAR DWIVEDI, J.
Rajendra Soren S/o Late Pratap Soren – Petitioner
Versus
The State of Jharkhand – Respondent
Cr. M.P. No. 28 of 2011
Decided On : 24-03-2021
Census Act - Quashing of Cognizance Order - Section 11(1)(A) and 11(1)(A-A) of the Census Act, 1948 - Section 13 and 13(A) of the Census Act
Fact of the Case:
The petitioner, a Para-Teacher, was alleged to have neglected his census work, leading to a case being registered against him under section 11(1)(A) and 11(1)(A-A) of the Census Act, 1948.
Finding of the Court:
The court found that the condition precedent for initiating a proceeding under Section 11(a) of the Census Act, as per Section 13(A), was not met in this case. Therefore, the impugned order taking cognizance was not sustainable in the eye of the law.
Issues: The key issue was whether the initiation of the proceeding under Section 11(a) of the Census Act complied with the condition precedent as per Section 13(A) of the Act.
Ratio Decidendi: The court held that as per Section 13(A) of the Census Act, it is a condition precedent for initiating a proceeding under Section 11(a) that a person must be authorized by the Director or any officer authorized by him. Since this condition was not met, the impugned order was quashed.
Final Decision: The impugned order taking cognizance was quashed, and the entire criminal proceeding was disposed of.
JUDGMENT :
SANJAY KUMAR DWIVEDI, J.
1. Heard Mr. Shubham Mishra, the learned counsel for the petitioner and Mr. Vishwanath Roy, the learned counsel for the State.
2. This criminal miscellaneous petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. By order dated 07.06.2011 itself the Opposite Party No. 2 was called upon for filing the affidavit. The Opposite Party No. 2 has filed the affidavit which is on the record.
4. The counter affidavit has been filed through one Rakesh Kumar, the learned advocate along with Vakalatnama.
5. The petitioner has filed this petition for quashing the order taking cognizance dated 29.09.2010 passed in G.R. No. 425/2010/T.R. No. 1367 of 2010 arising out of Littipara P.S. Case No. 23 of 2010.
6. The facts of the case, in narrow compass, wherein it has been stated that in the written report by one Kamal Nath Sahu, Superviser of Circle No. 0011 informed to the informant-Block Development Officer-cum-Charge Officer, Littipara Block that the petitioner namely, Rajendra Soren, Para-Teacher of Utkramit Prathmik Vidyalaya, Dumgo and was allotted the work of census. He did not satisfactorily work for census and as a result, several family has not been serialized in the panel and therefore requested the informant to engage another praganak to prepare a panel of family for census work and pursuant to receiving of that letter, the Block Development Officer-cum-Charge Officer, Littipara Block forwarded the letter to the Officer In-charge with written request for lodging a case against the petitioner for the alleged offence under section 11(1)(A) and 11(1)(A-A) of the Census Act, 1948. On the basis of the said written report, the Officer In-charge, Littipara Police Station registered a case vide Littipara P.S. Case No. 23 of 2010 for the aforesaid alleged offence against the petitioner.
7. Mr. Shubham Mishra, the learned counsel for the petitioner submits that Section 11 of the Census Act, 1948 is a penal provision. He submits that it can be invoked only in compliance of Section 13(A) of the Census Act. He submits that there is no communication on behalf of the Director of Census Operation or any officer authorized by him for initiating the proceeding under the aforesaid section. He submits that this is a condition precedent for initiating a proceeding under section 11 of the Census Act.
8. Mr. Vishwanath Roy, the learned counsel for the State tried to justify the order and submits that there is no illegality in the written report and on receiving the written report the Block Development Officer-cum-Charge Officer, Littipara Block has forwarded the same to the concerned police station.
9. A counter affidavit has been filed on behalf of the Opposite Party no. 2-the Block Development Officer-cum-Charge Officer, Littipara Block wherein he has stated that the petitioner has willfully and deliberately neglected to work, however, on the law point the said affidavit is silent.
10. On perusal of the cognizance order dated 29.09.2010, the learned Chief Judicial Magistrate has taken the cognizance under section 11 of the Census Act and transferred the file to another court for trial. In the cognizance order, there is no mention of the fact that any direction from the Director was there. For the sake of brevity, Section 13 and 13(A) of the Census Act, 1948 is reproduced herein-below:
Provided that no such prosecution shall be instituted except with the previous sanction referred to in section 12.
13A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer or court shall take cognizance
Compliance with the condition precedent for initiating a proceeding under Section 11(a) of the Census Act, as per Section 13(A), is essential for the sustainability of the cognizance order.
The order taking cognizance should mention at least the bare minimum prima-facie materials against the accused petitioners and the alleged offense.
A cognizance order must demonstrate an application of mind and provide reasons or materials against the accused. Simply filling in the word 'cognizance' without any reasoning or consideration of the ....
Executive Magistrate cannot pass any order, once there is anything to say that prima facie, any person in possession and once there is a civil matter pending.
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