Gauhati High Court
Dina Nath Ray vs The State Of Assam And Anr on 15 November, 2019
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/5
GAHC010274112019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 1331/2019
1:DINA NATH RAY
S/O LATE SARDAR RAY, R/O H. NO-11, NEAR NAMGHAR PATH, WARD NO.
56, BASISTHA, P.O.-BASISTHA, P.S.-BASISTHA, GUWAHATI, KAMRUP (M),
ASSAM, PIN-781029
VERSUS
1:THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:JYOTI RANJAN KAKOTI
S/O JATINDRA NATH KAKOTI
R/O DIMARUGURI
SWAHID ANIL BORA PATH
P.S.-ITACHALI
NAGAON
ASSAM
PIN-78200
Advocate for the Petitioner : MR. P KATAKI
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
Date : 15-11-2019 Heard Mr. PK Kakati, learned counsel for the petitioner and Mr. BB Gogoi, learned Addl. P.P. Page No.# 2/5
2. The present petitioner, Dina Nath Ray has been arrayed as accused in Basistha PS Case No. 642/2017 dated 24.07.2017 corresponding to G.R. Case No. 9716/2017 under Section 447 IPC read with Section 5 of Assam Land Grabbing (Prohibition) Act, 2010 and the case is at the stage of investigation.
3. The present petition has been preferred by one of the accused, named in the FIR, Dina Nath Ray, challenging that police has no power to register and investigate the case hence aforesaid case to liable to be quashed and set aside. In the petition, it has been contended that the petitioner along with one Rajen Sarma named in the FIR are the rightful owner of said land having proper documents like sale deed, patta, jamabandi etc. in their name which have been annexed and at the time of filing of the FIR, the petitioner was in possession of the land having all lawful documents, despite on the basis of cryptic allegation made in the FIR by the informant, namely, Jyoti Prakash Kakati, the I.O. has registered the case.
4. I have gone through the documents and also considered the submission of the learned counsel for the petitioner as well as learned Addl. P.P.
5. The FIR in respect of the aforesaid case reads as follows:
"...with due respect, I begs to informant you that our plot of land measuring 1 Bigha 10 Lechas covered by Dag No. 710 and Patta No. 421 of village 2 No. Maidam, Mouza- Beltola, has been first possessed on 22-7-2017 by reaising Tarza wall, by Sri Rajen Sarma, W/o Sri Dinesh Sarma and Sri Dina Nath Rai, S/o Sadat Rai and today 24-07- 2017 the aforesaid land is possessed by raising pucca wall.
So it is prayed to stop the Pucca wall constructed over our aforesaid land."
6. Obviously, such FIR is very much cryptic while the informant has not asserted that he had any land document in support of said land etc., nor that he was in continuous possession of the same. The I.O. has registered the case without verifying the document of the informant, whether he was in possession over the disputed land.
7. The Divisional Bench of this Court in its decision in the case of xxx. Vs. State of Assam reported in (2017) 5 GLT 854 has dealt with the aforesaid provision as to whether the police can investigate such matter pertaining to land grabbing or they have no role to play in view of the special legislation that has been enacted as the "Assam Land Grabbing (Prohibition) Act, 2010. Certain allegations were taken for consideration and question No.3 which is relevant to decide the issue raised in this case, which reads as follows:
"iii) Whether the police or any investigating agency is empowered to file charge-sheet in connection with an alleged act of land grabbing alleging violation o f Sections 4/5 of the Assam Page No.# 3/5 Land Grabbing (Prohibition) Act, 2010, as there is n o provision in the said Act for filing charge sheet and even if answer to this question is in the affirmative, has a Land Grabbing Special Tribunal created under the said Act the power to take cognizance of an offence of land grabbing alleged to have been committed solitarily or in conjunction with offences under other penal statutes like the Indian Penal Code in view of the unambiguous language o f sub-section (2) of Section 8 of the said Act?"
8. After elaborate appreciation of the provisions of the Act, the Division Bench held as follows:
"21) This brings us to the third question. Question No.(iiii) has got two parts. The first part relates to competence of the police or any investigating agency to file charge-sheet in connection with an alleged act of land grabbing since there is no such provision in the 2010 Act for filing charge-sheet. The second part of the question relates to competence of a Special Tribunal constituted under the 2010 Act to take cognizance of an offence of land grabbing committed solitarily or in conjunction with offences under other penal statutes like the India n Penal Code. 22.1) We may address the first part of question No.(iii) first. Under Section 7 of the 2010 Act, a Special Tribunal has the jurisdiction to enquire into any alleged act of land grabbing and trial of cases and while doing so, it has the power to determine ownership, title or possession of the land grabbed. Section 8(1 ) of the 2010 Act clearly provides that every Special Tribunal shall have power to try all cases arising out of any alleged act of land grabbing or with respect to title or possession of the land grabbed whether before or after commencement of the 2010 Act. 22.2) As per sub-section (4) of Section 8, notwithstanding anything contained in the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973, any case in respect of an alleged act of land grabbing or incidental determination of title or possession of any land grabbed shall be triable in the Special Tribunal. Sub-Section (6) of Section 8 is relevant and is extracted hereunder:- (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, it shall also be lawful for the Special Tribunal to frame charge and try all of fences punishable under this Act, if in the opinion of the Special Tribunal it is so necessary after delivery of its decision and other in the civil liability w here prima facie it appears to the Special Tribunal that a particular person or a group of persons are responsible for commission of an offence of land grabbing punishable under this Act. 22.3) Thus, from a careful analysis of sub-section (6) of Section 8 of the 201 0 Act, it is quite clear that the Special Tribunal has the jurisdiction to frame charge and thereafter try all offences punishable under the 2010 Act. Question of framing of charge will only arise after the Special Tribunal carries out enquiry and comes to a prima facie satisfaction that a triable offence is made out. While doing so, the Special Tribunal will be guided by Section 11 of the 2010 Ac t as per which once cognizance is taken, the Special Tribunal shall presume that the person, who is alleged to have grabbed the land, is a land grabber and the burden of proving that the land has not been grabbed by him shall be on such per son. Reverting back to Section 7 of the 2010 Act, it is obvious that Special Tribunals are constituted for the purpose of enquiry into acts of land grabbing and trial of such cases. 22.4) As per Section 12 of the 2010 Act, any case pending before any Court or other authority immediately before coming into force of the 2010 Act which involves any act of land grabbing, shall stand transferred to the Special Tribunal within whose jurisdiction the alleged grabbed land is situated. 22.5) Thus, if the provisions of Sections 7, 8, 11 and 12 of the 2010 Act are read in conjunction, what emerges is that in case of an offence of land grabbing and the related offences as described in Section 5 of the 2010 Act, the authority competent to enquire into and try the offence of land grabbing is the Special Tribunal. It is for Page No.# 4/5 the Special Tribunal to frame charge and thereafter try all offences punishable under the 2010 Act. Going by the language of Section 12, if any case involving any act of land grabbing was pending before the police or other investigating agency at the commencement of the 2010 Act, such case would stand transferred to the jurisdictional Special Tribunal. Having regard to the non -obstante clause employed in sub-section (4) of Section 8 of the 2010 Act, it is evident that when it is a case of land grabbing, exclusive jurisdiction is vested in the Special Tribunal. In such a scenario, role of the police or any investigating agency is ruled out. Therefore, answer to this part of the question, to our mind, does not arise at all. 22.6) Regarding the second part of question No.(iii), we may note that the 201 0 Act, more particularly, Sections 3, 4 and 5 thereof, clearly provides that the Special Tribunal is competent to enquire into and try the offence of land grabbing and other offences in connection with land grabbing, such as, those specific ally mentioned in Section 5. The other offences in connection with land grabbing are specifically mentioned in Section 5, such as, selling or possessing for the purpose of selling any grabbed land, instigating or inciting any person to commit land grabbing, etc. However, in so far offences of other penal statutes like the Indian Penal Code are concerned, the 2010 Act is silent; rather, there is no specific provision in the 2010 Act to take cognizance of offence of other penal statutes. As a matter of fact, the aforesaid sections clearly provide that the enquiry and trial should be confined to the offences mentioned therein. It is trite that a penal statute has to be construed strictly. To elaborate on this, let us take an example. While committing the offence of land grabbing, which is a punishable offence under the 2010 Act, a murder takes place. In such a scenario, the Special Tribunal would not have the jurisdiction to try the offence of murder but would have to confine its enquiry and trial to the offence of land grabbing. While the offence of murder would be investigated by the police and thereafter tried by the competent Court, the Special Tribunal would proceed with the offence of land grabbing as per the 2010 Act. There would be no legal bar for parallel proceeding of two trials in two different fora as both are distinct and separate offences triable under separate statutes."
9. Thus, the order of this Court has already clarified that police has no role to investigate such offences which is the subject matter of special tribunal and at best such FIR etc. can be transferred to the special tribunal within whose jurisdiction the alleged occurrence took place. In view of such decision and findings (as the same is not yet overruled), the continuation of investigation by the police is not at all justified.
10. Learned Addl. P.P. has also conceded to the fact that in view of the decision rendered by the Divisional Bench of this Court, the question has been answered and as such further investigation of the instant case by the police is obviously barred.
11. Taking note of all above and the documents annexed, it is hereby directed to the police that instead of continuing the investigation of the aforesaid case, they shall forward the aforesaid FIR and the relevant part of investigation whatever they have done, to the competent special tribunal, as indicated above, and on receipt of said FIR etc., the tribunal will decide the matter in accordance with law as expeditiously as possible.
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12. With the aforesaid observation and direction, the petition stands disposed of.
JUDGE milansinha/-
Comparing Assistant