Madhya Pradesh High Court
Smt. Shamim Modi vs The State Of Madhya Pradesh on 6 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015,
M.CR.C. No.3349/2016 & Cr.R. No.1040/2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6th OF MAY, 2024
MISC. CRIMINAL CASE No. 21237 of 2015
BETWEEN:-
1. SMT. SHAMIM MODI W/O SHRI ANURAG MODI,
AGED ABOUT 53 YEARS, R/O GURUDEO
PARISAR, SUBHASH WARD, HARDA PRESENTLY
RESIDING AT 104, MULTI STORY, BUILDING
TATA INDSTITUTE OF SOCIAL SCIENCES
DEONDAR MUMBAI (MAHARASHTRA)
2. ANURAG MODI S/O SHIR. P.D. MODI, AGED
ABOUT 53 YEARS, R/O GURUDEO PARISAR,
SUBHASH WARD, HARDA PRESENTLY
RESIDING AT 104, MULTI STORY, BUILDING
TATA INDSTITUTE OF SOCIAL SCIENCES
DEONDAR MUMBAI (MAHARASHTRA)
.....APPLICANTS
(BY SHRI IMTIYAZ HUSSAIN - SENIOR ADVOCATE WITH SHRI MOHD.
SAZID KHAN - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
P.S. RAHATGAON DISTRICT HARDA (MADHYA
PRADESH)
2. OMPRAKASH PATEK S/O SHRI DAULAT RAM
PATEL, AGED ABOUT 57 YEARS, TEMAGAON
RANGE P.S. RAHATGAON DISTRICT HARDA
(MADHYA PRADESH)
.....RESPONDENTS
(SMT. SWATI ASEEM GEORGE - DEPUTY GOVERNMENT ADVOCATE FOR
RESPONDENT NO.1/STATE )
MISC. CRIMINAL CASE No. 21943 of 2015
BETWEEN:-
SANJAY ARYA S/O KALLU ARYA, AGED ABOUT 45
YEARS R/O VILLAGE CHIRAAPATLA THANA
CHICHOLI DISTRICT BETUL (MADHYA PRADESH)
2 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015,
M.CR.C. No.3349/2016 & Cr.R. No.1040/2021
.....APPLICANT
(BY SHRI RAGHVENDRA KUMAR - ADVOCATE THROUGH VIDEO
CONFERENCING WITH SHRI UMASHANKAR RAWAT - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION RAHATGAON, DISTRICT
HARDA (MADHYA PRADESH)
2. OMPRAKASH PATEL S/O DAULATRAM PATEL,
OCCUPATION: FOREST RANGER, TEMAGAON
FOREST RANGE OFFICE, P.S. RAHATGAON,
DISTRICT HARDA (MADHYA PRADESH)
.....RESPONDENTS
(SMT. SWATI ASEEM GEORGE - DEPUTY GOVERNMENT ADVOCATE FOR
RESPONDENT NO.1/STATE )
MISC. CRIMINAL CASE No. 3349 of 2016
BETWEEN:-
1. RAMBHAAU S/O ROHNA KORKU, AGED ABOUT
56 YEARS R/O VILLAGE DHEGAA THANA
RAHATGAAON DISTRICT HARDA (MADHYA
PRADESH)
2. PUJAARI S/O KISHORI KORKU, AGED ABOUT
46 YEARS R/O VILLAGE UNCHABARARI,
THANA RAHAT GAON, DISTRICT HARDA
(MADHYA PRADESH)
3. SUBEDAAR S/O SHOBHAARAM KORKU, AGED
ABOUT 70 YEARS, R/O VILLAGE
UNCHABARARI, THANA RAHAT GAON,
DISTRICT HARDA (MADHYA PRADESH)
4. KISHORI S/O PANCHAM THAATIYA, AGED
ABOUT 65 YEARS, R/O VILLAGE
UNCHABARARI, THANA RAHAT GAON,
DISTRICT HARDA (MADHYA PRADESH)
5. SUDIYA BAAI W/O PARASRAM KORKU, AGED
ABOUT 60 YEARS, R/O VILLAGE
UNCHABARARI, THANA RAHAT GAON,
DISTRICT HARDA (MADHYA PRADESH)
6. SHYAM BAI W/O RAMDEEN KORKU, AGED
ABOUT 35 YEARS, VILLAGE DHEGAA, THANA
3 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015,
M.CR.C. No.3349/2016 & Cr.R. No.1040/2021
RAHAT GAON, DISTRICT HARDA (MADHYA
PRADESH)
7. KASTURI BAI W/O SHIVPRASAD LOHAR, AGED
ABOUT 52 YEARS, R/O VILLAGE
UNCHABARARI, THANA RAHAT GAON,
DISTRICT HARDA (MADHYA PRADESH)
8. PHOOLWATI BAI W/O RAMBHAROS KORKU,
AGED ABOUT 56 YEARS R/O VILLAGE
DHEGAA, THANA RAHAT GAON, DISTRICT
HARDA (MADHYA PRADESH)
9. RAMRATAN S/O MANSARAM KORKU, AGED
ABOUT 56 YEARS R/O VILLAGE DHEGAA
THANA RAHATGAAON DISTRICT HARDA
(MADHYA PRADESH)
10. SHIVPRASAD S/O SEVARAM LOHAR, AGED
ABOUT 55 YEARS, R/O VILLAGE
UNCHABARARI, THANA RAHAT GAON,
DISTRICT HARDA (MADHYA PRADESH)
11. RAMDAS S/O ROHNAA KORKU, AGED ABOUT
55 YEARS, R/O VILLAGE DHEGAA THANA
RAHATGAAON DISTRICT HARDA (MADHYA
PRADESH)
12. RAMPYARI W/O RAMBHAU KORKU, AGED
ABOUT 50 YEARS R/O VILLAGE DHEGAA
THANA RAHATGAAON DISTRCT HARDA
(MADHYA PRADESH)
13. RAMDEEN S/O SUKHRAAM KORKU, AGED
ABOUT 39 YEARS R/O VILLAGE DHEGAA
THANA RAHATGAAON DISTRICT HARDA
(MADHYA PRADESH)
14. BRAJLAL S/O NOTEY KORKU, AGED ABOUT 58
YEARS, VILLAGE DAATRI DHANA THAN
RAHATGAAON DISTRCT HARDA (MADHYA
PRADESH)
15. GAJARIBAI W/O SUBEDAAR KORKU, AGED
ABOUT 60 YEARS R/O VILLAGE
UNCHABARARI, THANA RAHAT GAON,
DISTRICT HARDA (MADHYA PRADESH)
16. SHIVPRASAD S/O SUBEDAAR KORKU, AGED
4 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015,
M.CR.C. No.3349/2016 & Cr.R. No.1040/2021
ABOUT 42 YEARS, R/O VILLAGE
UNCHABARARI, THANA RAHAT GAON,
DISTRICT HARDA (MADHYA PRADESH)
17. RAMPYAARI W/O GANAGRAAM KORKU, AGED
ABOUT 52 YEARS R/O VILLAGE DHEGAA
THANA RAHATGAAON DISTRICT HARDA
(MADHYA PRADESH)
18. GANGRAAM S/O MAANDU, AGED ABOUT 55
YEARS R/O VILLAGE DHEGAA THANA
RAHATGAAON DISTRICT HARDA (MADHYA
PRADESH)
19. RAMDEEN S/O GULAAB GOND, AGED ABOUT
68 YEARS, R/O VILLAGE RAWAANG, THANA
RAHAT GAON, DISTRICT HARDA (MADHYA
PRADESH)
.....APPLICANTS
(BY SHRI RAGHVENDRA KUMAR - ADVOCATE THROUGH VIDEO
CONFERENCING WITH SHRI UMASHANKAR RAWAT - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
P.S. RAHATGAON DISTRICT HARDA (MADHYA
PRADESH)
2. OM PRAKESH PATEL S/O DAULAT RAM PATEL,
AGED ABOUT 57 YEARS, OCCUPATION: FOREST
RANGER TEMAGAON RANGE, P.S. RAHATGAON
DISTRICT HARDA (MADHYA PRADESH)
.....RESPONDENTS
(SMT. SWATI ASEEM GEORGE - DEPUTY GOVERNMENT ADVOCATE FOR
RESPONDENT NO.1/STATE)
CRIMINAL REVISION No. 1040 of 2021
BETWEEN:-
ANURAG MODI S/O P.D. MODI, AGED ABOUT 55
YEARS R/O GURUDEV PARISAR AT P.O. HARDA
DISTRICT HARDA (MADHYA PRADESH)
.....APPLICANT
(BY SHRI RAGHVENDRA KUMAR - ADVOCATE THROUGH VIDEO
CONFERENCING WITH SHRI UMASHANKAR RAWAT - ADVOCATE)
5 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015,
M.CR.C. No.3349/2016 & Cr.R. No.1040/2021
AND
THE STATE OF MADHYA PRADESH THROUGH P.S.
RAHATGAON DISTRICT HARDA (MADHYA
PRADESH)
.....RESPONDENTS
(SMT. SWATI ASEEM GEORGE - DEPUTY GOVERNMENT ADVOCATE FOR
RESPONDENT NO.1/STATE)
............................................................................................................................................
"Reserved on : 02.05.2024"
"Pronounced on : 06.05.2024"
These applications having been heard and reserved for orders,
coming on for pronouncement this day, the court passed the following:
ORDER
By this common order, M.Cr.C. No.21943/2015, M.Cr.C.No.3349/2016 and Criminal Revision No.1040/2021 shall be decided.
2. It is submitted by counsel for applicants in M.Cr.C. No.21943/2015, M.Cr.C.No.3349/2016 and Criminal Revision No.1040/2021 that he would adopt the arguments, which will be made by Shri Imtiyaz Hussain, Senior Advocate in M.Cr.C. No.21237/2015 and accordingly, it is submitted that these applications/Revision should also be decided alongwith M.Cr.C. No.21237/2015.
3. For the sake of convenience, the facts of M.Cr.C. No.21237/2015 shall be taken into consideration.
4. This application under Section 482 of Cr.P.C. has been filed seeking following reliefs:
"It is therefore, prayed that the Hon'ble Court may kindly be pleased to quash the FIR Annexure P-1 and consequent charge sheet filed against the Applicants in the interest of justice in 6 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015, M.CR.C. No.3349/2016 & Cr.R. No.1040/2021 exercise of inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973."
5. It is submitted by counsel for applicants that one Omprakash Patel lodged an FIR No.76/2007 at Police Station Rahatgaon, District Harda against more than 25 persons including applicants for the offence punishable under Sections 341, 364, 294, 397, 327, 332, 353, 186, 506, 342, 216 and 109 of IPC.
6. By referring to aforesaid FIR, it is submitted by counsel for applicant that applicant alongwith other forest officials were on patrolling and during patrolling they found that Ramdas S/o Rohna Korku, Rambhau S/o Rohna and Rambharos S/o Rohna Korku were illegally ploughing the forest land with an intention to encroach upon the said land. They stopped these persons from doing the same and accordingly, they ran away alongwith their cattle and plough. However, accused Ramdas was taken in custody and POR No.12099/2023 for offence under Section 26 of Forest Act was registered. After formally arresting Ramdas they started coming back from the village at about 04:30 p.m. When forest officials reached near the bank of Kajal river then the residents of Village Thega, who have been named in the FIR as well as other 8-10 persons surrounded them. They were armed with lathi, axe, rod, stones, ballam etc. and forcefully stopped them and started abusing the forest party filthily in the name of mother and sister. They were speaking in the local tribal language which the applicant can understand. They were alleging that they are the active workers of S.J. Party and their leaders namely Sameem Modi, Anurag Modi and Sanjay Arya have directed them that land belongs to them and in case if Nakedaar or Rangers come to the village, then they should be tied and 7 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015, M.CR.C. No.3349/2016 & Cr.R. No.1040/2021 should be beaten and their leaders have also instructed them to encroach upon the government land and if it is objected by Forest Department, then they should not listen to them and forest officials should be produced before Sameem Modi, Anurag Modi and Sanjay Arya and since their leaders have issued such an order, therefore, they will teach a lesson to the forest officials. At the instigation of Sameem Modi, Anurag Modi and Sajay Arya, they attacked the forest officials and also forcefully took away Ramdas, who was in the custody of forest officials. All the accused persons in furtherance of common object had assaulted the complainant/applicant/Omprakash Patel, forest guards and other forest officials with an intention to kill them. Thereafter, by tying their hands and legs, they took them to Village Thega and while assaulting them, they were insisting that they will produce the forest officials before Sameem Modi, Anurag Modi and Sanjay Arya and will teach a lesson to forest officials and only under the orders of Sameem Modi, Anurag Modi and Sanjay Arya, they would release them. They took away the government mobile phone, titan watch, one silver kada, one gold ring fitted with pukhraj, one silver ring fitted with neelam and cash amount of Rs.3,700/- from him. The wife of Ramdas also compelled him to sign certain blank papers. On the next date i.e. on 12.07.2007 forest officials were got released by officials of Forest Department and police staff.
7. It is submitted by counsel for applicants that Police after completing the investigation has filed a charge sheet against multiple accused persons for offence under Sections 341, 364, 294, 397, 327, 332, 353, 186, 506, 342, 216, 109 of IPC including applicants.
8 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015, M.CR.C. No.3349/2016 & Cr.R. No.1040/2021
8. Challenging the charge sheet as well as FIR, it is submitted by counsel for applicants that the only allegations against the applicants are that when the Forest Officials were surrounded and were taken in captivity, the villagers/co-accused persons were shouting that they have been instructed by Shamim Modi, Anurag Modi and Sanjay Arya to encroach upon the Forest Land and they also encouraged that in case if it is objected by the Forest Department, then the tribals should not listen to Forest Department and the Forest Officials should be produced before Shamim Modi, Anurag Modi and Sanjay Arya. Accordingly, it was alleged that since applicants and Sanjay Arya have instigated and directed the tribals to encroach upon the Forest Land as well as to resist the Forest Officials therefore, they took away Ramdas from the custody of Forest Officials and also took the Forest Officials in their captivity. The Forest Officials were beaten and were ultimately could be rescued by other Forest Officials and Police Department on the next date. It is submitted that even if the entire allegations are accepted, then it is clear that it is no one's case that either of the applicants were present on the spot when the Forest Officials were beaten and were taken in the captivity by the tribals or Ramdas was forcibly released from the custody of Forest Officials. Merely because the tribals were chanting that applicants and Sanjay Arya have given a direction to them to encroach upon the Forest land and not to listen to Forest Officials and in case if it resisted by Forest Officials, then they should be produced before Shamim Modi, Anurag Modi and Sanjay Arya, it would not mean that applicants have committed any offence. Even the correctness of these allegations has not been verified by the Police Department. It is further submitted that the Police Department has also relied upon the 9 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015, M.CR.C. No.3349/2016 & Cr.R. No.1040/2021 speeches given by applicants as contained in the CD but the source of CD, authenticity of CD, voice test, whether the CD contains undoctored speeches or not etc. has not been verified, therefore, the prosecution cannot rely upon the speeches of applicants, which according to prosecution were delivered for instigating the tribals to revolt against the State machinery. Similarly, counsel for other applicants submitted that since under the Forest Rights Act, the tribals are entitled to protect their rights. As the Forest Officials have violated the forest rights of applicants, therefore, they had every right to protect the illegal activity of the Forest Officials.
9. Per contra, application is vehemently opposed by counsel for the State. It is submitted that there is sufficient material available on record warranting prosecution of applicants. In fact applicants were instigating the tribals to revolt against the State machinery and to destroy the Forest area. As per the FIR lodged by complainant, when the complainant party was on patrolling they found that Ramdas and his brothers were cultivating the Forest land by making an attempt to illegally encroach upon the Forest area. When it was objected by the Officials of the Forest Department, Ramdas and his brothers tried to run away. Ramdas was taken into custody. When the Forest Officials were coming back from the village, then they were surrounded by wife of Ramdas and other villagers. They were beaten. They were taken in captivity and they were kept as hostages for the whole night and they could be rescued only on the next day with the help of Police party and the Forest Officials. Under these circumstances, it is submitted that application should be dismissed.
10. Considered the submission made by counsel for the parties.
10 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015, M.CR.C. No.3349/2016 & Cr.R. No.1040/2021
11. The allegations against the applicants are that they had instigated the tribals to revolt against the State machinery. This fact was specifically chanted by the tribals at the time when they had attacked the Forest Officials and they also took them in their captivity by alleging that they have been directed by Anurag Modi, Shamim Modi and Sanjay Arya that in case if any Forest Official resist to activities of tribals in encroaching upon the Forest Land, then those Forest Officials should be produced before them. The Police had relied upon the provocative speech of the applicants. Whether the CD can be relied upon for convicting the applicants or not is yet to be decided by the trial Court.
12. Under these circumstances, this Court is of considered opinion that so far as the applicants Shamim Modi and Anurag Modi are concerned, there are specific allegations in the charge sheet warranting their trial. Even otherwise, it is well established principle of law that this Court in exercise of power under Section 482 of Cr.P.C. can quash the proceedings only if uncontroverted allegations do not make out an offence. Since, applicants had instigated the tribals to revolt against the State machinery and only on instigation and directions of the applicants, the Forest Officials were beaten as well as were taken in the captivity and were kept as a hostage for the entire night, who could be rescued on the next day with the help of Police party and other Forest Officials, this Court is of considered opinion that so far as the application filed by Shamim Modi and Anurag Modi is concerned, it is liable to be dismissed and it is, accordingly, dismissed.
13. So far as the contention of counsel for other applicants that since the tribals had every right to protect their Forest rights as granted under the Forest Rights Act, 2006 is concerned, counsel for applicants fairly 11 M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015, M.CR.C. No.3349/2016 & Cr.R. No.1040/2021 conceded that none of the tribals has any document to show that they were in possession of the Forest land on the date of commencement of Forest Rights Act, 2006.
14. Thus, it appears that after the commencement of Forest Rights Act, 2006, applicants started making an attempt to encroach upon the Forest Land by destroying the natural vegetation. Even otherwise, whether applicants have acted in discharge of their private defence of property or not and whether they have exceeded the right of private defence is a disputed question of fact, which is to be decided by the trial Court.
15. No other argument is advanced by the counsel for the parties.
16. Accordingly, this Court is of considered opinion that no case is made out warranting interference.
17. As a consequence thereof, M.Cr.C. No.21237/2015, M.Cr.C. No.21943/2015, M.Cr.C.No.3349/2016 and Cr.R. 1040/2021 are hereby dismissed.
(G.S. AHLUWALIA) JUDGE SR* Digitally signed by SHANU RAIKWAR Date: 2024.05.06 17:28:58 +05'30'