Sita Ram vs State & Ors on 6 August, 2013

[Cites 12, Cited by 0]

Rajasthan High Court - Jodhpur

Sita Ram vs State & Ors on 6 August, 2013

The instant misc. petition has been preferred on behalf of the petitioner against the order dated 19.5.2012 passed by the learned S.D.O., Merta City whereby the petitioner was issued a bailable warrant for showing cause as to why he should not be bound down for a period of one year under the provisions of Section 110 Cr.P.C. and for quashing of the proceedings of the Complaint Case No.85/2012 pending in the Court of the learned S.D.O., Merta City under the provisions of Section 110 Cr.P.C.

Learned counsel for the petitioner submitted that the initiation of the proceedings under Section 41/110 Cr.P.C. against the petitioner in this case was absolutely unwarranted. He urged that the petitioner is not a habitual SB Criminal Misc. Petition No.1936/2012 Sita Ram. Vs. State of Rajasthan & Ors.

(2) offender. He submitted that the S.H.O., Police Station, Merta City filed the complaint in question by mentioning that the petitioner is a quarrelsome man and is in the habit of committing various offences. It was also mentioned in the complaint that because of the criminal background of the petitioner, the general public is terrified and nobody is prepared to give evidence against the petitioner and in order to curtail his criminal activities, the petitioner should be bound down under the said provision. The S.H.O. also mentioned that the petitioner is a Mafia and history sheeter of the police station and thus, he should be bound down under Section 110 Cr.P.C.

He contended that three criminal cases referred to in the complaint claimed to have been registered against the petitioner, have been made the basis of the complaint. He pointed out that in all the three cases which were registered against the petitioner long ago, the petitioner has been exonerated/acquitted except for one case being Criminal Case No.162/1997 wherein the petitioner was saddled with a minor fine. Learned counsel has annexed the copy of a judgment dated 16.1.2008 passed by the Additional Chief Judicial Magistrate, Merta in the case registered against the petitioner under the Excise Act in 2003 arising out of the FIR No.53/2003. In the said case, the petitioner was acquitted. It is further submitted that the judgments of the SB Criminal Misc. Petition No.1936/2012 Sita Ram. Vs. State of Rajasthan & Ors.

(3) other two cases could not be procured because the files had been weeded out but it is urged that the petitioner has been acquitted in one of the two cases. Learned counsel for the petitioner thus urged that the petitioner is neither a habitual offender nor a history sheeter so as to justify the continuance of the proceedings under Section 110 Cr.P.C. against him. He has also placed on record a copy of the medical certificate issued by the Institution of Kidney Diseases and Research Center, Civil Hospital, Ahmedabad, as per which the petitioner was subjected to a kidney transplant in the year 2005.

A reply to the misc. petition has been filed by the learned Public Prosecutor. In the reply, it has been claimed that three criminal cases were registered against the petitioner and thus, he is a habitual offender and, therefore, the opening of the history sheet as well as the initiation of the proceedings under Section 110 Cr.P.C. against him are justified.

Heard and considered the arguments advanced by the learned counsel for the parties and perused the material available on the record.

The learned Public Prosecutor has filed a list of the cases registered against the petitioner till date along with the reply. In the list, it has been clearly mentioned that out of the three total criminal cases registered against the SB Criminal Misc. Petition No.1936/2012 Sita Ram. Vs. State of Rajasthan & Ors.

(4) petitioner till date, he was acquitted in two, whilst in one case involving offences under Sections 341 and 323 IPC registered in 1995, the petitioner was convicted on 10.9.1997.

After going through the contents of the reply, it is evident that except for the three cases detailed in the reply, there is no material on the record of the case by which branding the petitioner as habitual offender, can be justified. The allegations levelled in the complaint are general and vague in nature. The complaint itself is a printed document wherein blanks have been filled in. Thus, it is apparent that the complaint itself was filed mechanically. In order to implicate a person in the proceedings under Section 110 Cr.P.C., there has to be material on the record of the case to show that a person falls in seven categories referred to in the said provision. Section 110 Cr.P.C. reads as under :-

110. Security for good behaviour from habitual offenders.-When an Executive Magistrate receives information that there is within his local jurisdiction a person who-

(a) is by habit a robber, house-breaker, thief, or forger, or,

(b) is by habit a receiver of stolen property knowing the same to have been stolen, or

(c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen SB Criminal Misc. Petition No.1936/2012 Sita Ram. Vs. State of Rajasthan & Ors.

(5)

property, or

(d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code (45 of 1860), or under section 489A, section 489B, section 489C or section 489D of that Code, or

(e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or

(f) habitually commits, or attempts to commit, or abets the commission of-

(i) any offence under one or more of the following Acts, namely:-

(a) the Drugs and Cosmetics Act, 1940 (23 of 1940 );

(b) the Foreign Exchange Regulation Act, 1973 (46 of 1973 );

(c) the Employees' Provident Funds and Family Pension Fund Act, 1952 (19 of 1952);

(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954 );

(e) the Essential Commodities Act, 1955 (10 of 1955);

(f) the Untouchability (Offences) Act, 1955 (22 of 1955 );

(f) the Customs Act, 1962 or (52 of 1962 );

(ii) any offence punishable under any other law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs or of corruption, or SB Criminal Misc. Petition No.1936/2012 Sita Ram. Vs. State of Rajasthan & Ors.

(6)

(g) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit."

The word "Habitual Offender" has been defined in Rajasthan Habitual Offenders Act, which reads as under :-

"2(a) 'habitual offender' means a person who, during any continuous period of five years, whether before or after the 15th day of September, 1952 or partly before and partly after the said day, has been sentenced on conviction on not less than three occasions since he attained the age of eighteen years to a substantive term of imprisonment for any one or more of the scheduled offences committed on different occasions and not so connected together as to form parts of the same transaction, such sentence not having been reversed in appeal or revision :

Provided that in computing the continuous period of five years referred to above any period spent in jail either under a sentence of imprisonment or under detention shall not be taken into account."

The header of Section 110 Cr.P.C. reads "Security for good behaviour from habitual offenders". Thus, the object of the provision is primarily to take security for good behaviour from the Habitual Offenders.

SB Criminal Misc. Petition No.1936/2012 Sita Ram. Vs. State of Rajasthan & Ors.

(7) From an evaluation of the above two provisions and the facts mentioned in the reply, it becomes apparent that the petitioner cannot be said to be a habitual offender. At best, the prosecution could try to bring the petitioner within the ambit of Sub-section (g) of Section 110 Cr.P.C., but on a perusal of the complaint, it becomes apparent that the allegations levelled in the complaint in this regard are not only vague but are also thoroughly unsubstantiated because not a single name has been mentioned in the complaint regarding the identity of the person/persons whom the petitioner threatened or intimidated by his conduct. The two criminal cases of assault were registered against the petitioner way back in the years 1995 and 2001. Therefore, marking the petitioner to be a habitual offender or a person of such dangerous or desperate nature, so as to render his being at large, hazardous to the community, is prima-facie not acceptable, without taking security from him. Contrary to the allegations in the complaint, the document Annex.1 which has been submitted by the S.H.O., P.S. Merta City to the S.P., Merta mentions that the petitioner is in the habit of harassing the downtrodden sections of the society and that the petitioner provides free liquor to the young people at large. Thus, it is apparent that the allegations made in the complaint and the document Annex.1 are highly contradictory. The fact remains that till date only a single SB Criminal Misc. Petition No.1936/2012 Sita Ram. Vs. State of Rajasthan & Ors.

(8) case under the Excise Act was registered against the petitioner which too resulted in his acquittal. If at all, the petitioner was engaged in large scale smuggling of liquor as per report Annex.1 submitted by the S.H.O., then the registration of a single case is rather indicative of the failure of the prosecution agency to check the petitioner's alleged criminal activities. It appears that the police officers of the Merta District in order to cover up their own failure and inefficiency resorted to these unjustified proceedings for having the petitioner bound down without any basis whatsoever.

As a result of the aforesaid discussion, this Court feels that the necessary conditions for invocation of the provisions of Section 110 Cr.P.C. have not been satisfied in this case.

The upshot of the above discussion is that the instant misc. petition succeeds and the order dated 19.5.2012 passed by the learned S.D.O., Merta City whereby the petitioner has been bound down for a year and all subsequent proceedings sought to be taken thereupon are hereby quashed.

Stay petition also stands disposed of.

(SANDEEP MEHTA), J.

S.Phophaliya

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jodhpur