Orissa High Court
Giriraj Singh Majhi vs Uma Sankar Agarwal & ....... Opp. ... on 23 December, 2024
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3393 of 2016
(In the matter of an application under Section 482 of Criminal Procedure
Code, 1973)
Giriraj Singh Majhi ....... Petitioner
-Versus-
Uma Sankar Agarwal & ....... Opp. Parties
Another
For the Petitioner : Mr. P.K. Ray, Advocate
For the Opp. Parties : None
(for Opp. Party No.1)
: Mr. S.R. Roul,
Addl. Standing Counsel
(for Opp. Party No.2)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 04.10.2024 : Date of Judgment: 23.12.2024
S.S. Mishra, J. In this CRLMC Petition, the petitioner by invoking
jurisdiction of this court U/s 482 of Cr.P.C seeking quashing of the order
dated 31.08.2016 passed by the learned J.M.F.C., Kantabanji in 1.C.C
Case No.18 of 2016, whereby cognizance of offences punishable under
Sections 452/440/294/506/395 of the IPC has been taken against the
present petitioner.
2. The opposite party no.1 has instituted a complaint case being
1.C.C Case No.18 of 2016 against the petitioner, inter alia, alleging that his deceased father, Late Dhanpatrai Agrawal along with his brothers purchased Plot No.248 measuring an area of Ac.1.40 decimals appertaining to Khata No.73 of Mouza-Chatuanka on 19.04.1965 by a Registered Sale Deed bearing No.1149 of 1965 and since then they have been in possession over the said land. The opposite party no.1 has also stated in the complaint petition that they had constructed a boundary wall around the said land and also constructed some pakka rooms. On 02.07.2016 at about 8.00 A.M., he got information that the accused- petitioner along with others forcibly destroyed the boundary wall and building standing on the case land. The complainant along with the witnesses went there and found that the accused-petitioner along with twenty other persons, by breaking the gate and front wall by a JCB machine, entered into the case land. It is further alleged that the accused- Page 2 of 20 petitioner picked out a pistol from his pocket, aimed at the complainant, abused him in filthy languages and threatened him to go away from the spot otherwise he would kill them. He abused them by saying "SALA MADARCHOD AETHU PALEIJA NAHELE SALA MANKU PISTOL RE SUT KARI MARI DEBI MU NSG RE COMMANDO ACHHI" as because he being a soldier has a right to use the pistol and kill a person. When the petitioner along with others destroyed the structure situated over the case land, forcibly took away the sanitary materials of the complainant and uprooted the machinery of his Bhang Mill, the complainant protested them not to do so. But the petitioner and other accused persons did not listen to him and assaulted him by fist and kick blows and forcibly took away all the items with them, pointing the pistol towards the complainant threatening to kill him. As the accused- petitioner and his associates were more in numbers and armed with deadly weapons, the opposite party no.1/complainant returned back from the spot. The complainant in Paragraph-4 of the complaint case further stated that the accused is a stranger to the complainant and he had no right to forcibly enter into the case land, destroy the building and Page 3 of 20 forcibly take away the property of the complainant. It is further stated in the complaint that the complainant and his brothers had not faced any litigation with the accused/petitioner nor any order of dispossession passed against them by any Court of law. It was further contended by the opposite party no.1/complainant that on the same day, he has given a complaint before the Kantabanji Police Station, however, no action was taken. Therefore, he was compelled to file the complaint case before the Court of the learned J.M.F.C., Kantabanji.
3. An enquiry was conducted under Section 202 of Cr.P.C. and statements of the witnesses were recorded. By relying upon the allegations made in the complaint petition and the pre-summoning evidences adduced by the witnesses, the learned Court below vide impugned order dated 31.08.2016, took cognizance of offences under section 452/440/294/506/395 of IPC against the present petitioner.
4. The present petitioner being an accused has questioned the impugned order on the ground that the entire complaint case is based on the admitted false statements. Since the accused-petitioner has been serving in the Indian Army, taking advantage of his absence, the Page 4 of 20 opposite party no.1 has manufactured a false story and tried to absurp the property by entangling the petitioner in the false case.
5. The case of the petitioner is that he is a member of the S.T. community and had purchased the case land from another S.T. member by a Registered Sale Deed on 08.11.2013 and thereafter, mutated the case land in his favour. Since the petitioner has been serving in the Indian Army and posted at New Delhi, taking advantage of his absence, the complainant/opposite party no.1, who was earlier evicted from the case land, again forcibly occupied the same.
6. The petitioner being aggrieved by the overt act of the complainant/ opposite party no.1, filed R.M.C No.8A/74 of 2014 under Section 23-A of the OLR Act before the Sub-Collector, Titilagarh in which the Sub- Collector, Titilagarh on 13.05.2016 issued a writ under Section 23-A of the OLR Act to the Tahasildar, Kantabanji for delivery of possession of the case land in favour of the petitioner. Pursuant to said direction, the Tahasildar, Kantabanji by evicting the complainant/opposite party no.1 and his co-sharers, handed over the possession of the case land to the petitioner on 21.05.2016. Since then, the petitioner has been in Page 5 of 20 possession over the case land. When the complainant/ opposite party no.1 failed to continue the forcible and illegal possession on the case land, he designed the illegal means and by abusing the process of law filed the complaint case with an oblique purpose to pressurize the petitioner to remain in illegal possession over the case land.
7. Heard Mr. P.K. Ray, learned counsel for the petitioner and Mr. S.R. Roul, learned Additional Standing Counsel for the State.
8. None appeared for the opposite party no.1.
9. Mr. Ray, learned counsel for the petitioner, at the outset, submitted that the complaint petition is liable to be rejected out-rightly as the same is based on completely wrong and misleading facts. Since opposite party No.1 has not approached the Court of law with a clean hands, the complaint case is liable to be rejected. Pointing out to Paragraph-4 of the complaint petition, Mr. Ray submitted that the complainant has mislead the Court by stating that the ancestors of the complainant/opposite party no.1 had not faced any litigation with the petitioner nor any order of dispossession against them was ever passed by the Court. He relied upon the Annexure-3 to the present petition, Page 6 of 20 which is the order sheet of R.M.C. No.8A/74/2014. The said order sheet reveals that the petitioner had filed the OLR case under Section 23-A of the OLR Act against the ancestors of the complainant/opposite party no.1. and associates for their eviction from the case land. As per the order dated 12.04.2016 passed by the Sub-Collector, Titilagarh on contest, delivery of possession of the case land was directed and was handed over to the petitioner on 21.05.2016. The proceeding dated 12.04.2016 in R.M.C No.8A/74 of 2014 also reveals that the same was the second round of litigation amongst the petitioner and the complainant/opposite party no.1. In the similar litigation, the complainant and his brothers were directed to be evicted from the case land. Mr. Ray has also relied upon the Office Order No.1077 dated 21.05.2016 passed by the Tahasildar, Kantabanji, which is annexed to the present petition as Annexure-4, which shows that physical possession of the case land was handed over to the petitioner by the Tahasildar, Kantabanji on 21.05.2016. Prior to the handing over the possession, the Sub-Collector, Titilagarh and Revenue Officer, Titilagarh had also issued warrant to the Officer to give possession of the case land to the Page 7 of 20 present petitioner. Mr. Ray has emphatically relied upon the said document, contents of which is reproduced for ready reference:
"FORM NO-16 WARRANT TO OFFICER TO GIVE POSSESSION OF LAND (See Rule-22A) COURT OF THE SUB-COLLECTOR & REVENUE OFFICER, TITLAGARH Case No.8A/74 of 2014 Name (s) and address 1. Giriraj Singh Majhi, S/0-
(s) of the application (s) Sridhar Majhi, At-Jamutjuri,
P.O.-Chaulasukha, P.S.-
Kantabanji, Dist-Balangir,
2.Khetra Majhi, S/o-Padu
Majhi, At/Po-Chatuanka,
P.S.-Kantabanji, Dist-
Balangir.
Name (s) and address Siba Prasad Agrawal, S/o-
(s) of Defendant (s) Late Manchand Agrawal, At-
Kantabanji, near Ganesh
Lodge, P.O./P.S.-Kantabanji,
Dist-balangir
To
The Tahasildar, Kantabanji whreas the land described in the Scheduled below has to be put into the possession of Giriraj Singh Majhi, S/O - Sridhar Majhi, At - Jamutjuri, P.O.-Chaulasukha, P.S.-Kantabanji, Dist-Balangir (Odisha) you are directed to put the said person in possession of the same on the 20th day of May, 2016 and you are hereby authorised to remove any person bound by the order who may refuse to vacate the same. Should there be crops not ripe for immediate harvest on the land, the execution shall be postponed and report of such fact shall be made.
Given under my hand and seal this 13th day of May, 2016 SCHEDULE Mouza-Chatuanka, PS - Kantabanji, Holding No. 149/263 Plot No. Kisam Area (in acres) 248 Gharabari-Ghara Ac.1.400 dec.
Page 8 of 20
Total Ac.1.400 dec.
Date: 13.5.2016 Sd/-
Place:Titlagarh Sub-Collector & Revenue Officer
Titlagarh"
Relying upon the aforementioned document, Mr. Ray contended that the averments made by the complainant/opposite party no.1 in the complaint petition is completely false and contrary to the official record by which the possession of the case land had been given to the petitioner. Mr. Ray further contended that the proceeding drawn up by the petitioner before the Tahasildar, Kantabanji under Section 23-A of the OLR Act was a quasi-judicial proceeding and the order basing on which physical possession of the case land was handed over to the petitioner was also a quasi-judicial order. Therefore, the averments made by the complainant in the complaint are contrary to the quasi-judicial order. Mr. Ray further submitted that since the petitioner has been admittedly in lawful possession over the case land, no overt act could have been attributed to him for trespass and accordingly, there was no occasion for him to cause disturbance in the case land as alleged by the complainant/opposite party no.1. In this context, Mr. Ray has relied upon Page 9 of 20 Paragraph-49 of the judgment of the Hon'ble Supreme Court in the case of R. Balakrishna Pillai Vs. State of Kerala, reported in MANU/SC/0212/2003 which reads as under:
"49. To consider yet another aspect, the general principle of criminal jurisprudence is that element of mens rea and intention must accompany the culpable act or conduct of the accused. In respect of this mental element generally, Blackstone's criminal Practice describes it as under:
"in addition to proving that the accused satisfied the definition of the actus reus of the particular crime charged, the prosecution must also prove mens rea, i.e.,that the accused had the necessary mental state or degree of fault at the relevant time.xxxx""
Mr. Ray submitted that there is no mens rea involved in the present case as it is established on record that the petitioner was and has been in the lawful possession over the case land and the complainant/opposite party no.1 by manufacturing a false story, has initiated the complaint case aiming to expropriate the case land.
Mr. Ray also relied upon the judgment of the Hon'ble Supreme Court in the case of Pepsi Foods Ltd. and others Vrs. Special Judicial Magistrate, reported in MANU/SC/1090/1998 and submitted that summoning of an accused in a criminal case being a serious matter ought to have been carefully dealt with by the learned trial Court. The learned Page 10 of 20 trial Court had made no efforts to ascertain as to whether the complainant is indeed in possession over the land or not. Rather, the learned Magistrate has mechanically issued summons to the petitioner relying upon the completely false statements made by the complainant. Therefore, he submitted that the criminal proceeding initiated against the petitioner is manifestly attended with mala fide and malicious intention and in an ulterior motive for wreaking vengeance on the petitioner with a view to grab his property.
Mr. Ray further relied upon the judgment of the Hon'ble Supreme Court in the case of Madhavrao jiwajirao Scindia and other Vrs. Sambhajirao Chandrojirao Angre and others, reported in (1988) 1 SCC 692 and submitted that on the basis of the complaint and the evidence placed by the complainant even if the petitioner is put to trial, it may be a futile exercise, because there is no chance on the part of the complainant to secure a conviction against the petitioner. He relied upon Paragraph-7 of the said judgment, which reads as under:
"7. Xxxxxx it is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a Page 11 of 20 prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
To substantiate the aforementioned propositions, he has relied upon many other judgments on the similar line.
Mr. Ray finally submitted that fraud and misleading statement in a judicial proceeding vitiate the entire proceeding. By taking to this Court to the averments and statements made by the complainant in the complaint and pre-summoning statements, he submitted that the entire case of the complainant is based on mischievous and manufactured documents with a design to absurp the property of the petitioner, hence the proceeding is nothing, but fraud.
In the case of United India Insurance Co. Ltd. Vrs. Rajendra Singh and Ors, reported in AIR 2000 SC 1165, the Hon'ble Supreme Court has observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant).
Page 12 of 20
In Md. Ibrahim and Ors Vrs. State of Bihar and Ors, reported in (2009) 8 SCC 751, the Hon'ble Supreme Court has held that Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person deceived.
In the above background of fact and law, Mr. Ray, submitted that the petitioner seeks indulgence of this Court for quashing the entire proceeding initiated against him by the complainant/opposite party no.1.
10. Per contra, Mr. S.R. Roul, learned Additional Standing Counsel for the opposite party no.2-State submitted that the learned Court below has rightly taken cognizance of offences against the petitioner because the only test for the learned trial Court at the time of taking cognizance is to see as to whether from the averments made in the complaint petition and from the enquiry under Section 202 of Cr.P.C., any prima facie case is made out or not. Truthful of the statements made in the complaint petition and prevaricate the evidence need not be gone into at the time of Page 13 of 20 taking cognizance. Mr. Roul extensively relied upon the contents of the complaint petition and also read over the statements made by the complainant under Section 202 of Cr.P.C. and the statements of Muralidhar Khemka, Tarachand Agrawal, Sushil Agrawal, etc. Mr. Roul further submitted that in the complaint petition three more witnesses have been examined by the complainant under Section 202 of Cr.P.C., those who too have supported the complainant. Perusal of the statements of all the witnesses and the averments made in the complaint petition rightly made out a case in favour of the complainant/opposite party no.1 and against the accused-petitioner. Therefore, the learned trial Court has rightly taken cognizance.
However, Mr. Roul fairly submitted that perusal of the documents annexed to the present petition no doubt falsify the statements made in the complaint petition. But according to him, those documents relied upon by the petitioner in the present petition can only be taken into consideration at the stage of trial. Therefore, the petitioner is at liberty to use those documents on his defence. The inevitable conclusion is that the petitioner needs to face trial. Therefore, he submitted that the petition Page 14 of 20 may be dismissed giving liberty to the petitioner to raise all the points before the learned Court below at appropriate stage.
11. I have carefully gone through the entire record placed before this Court. I am convinced that there are inter-se dispute between the parties regarding the property in question. The petitioner has initiated a proceeding under Section 23-A of the OLR Act. Pursuant to the direction of the Sub-Collector, Titilagarh and by following due process of law, the Tahasildar, Kantabanji had handed over the physical possession of the case land to the petitioner on 21.05.2016. Hence, insofar as possession part is concerned, there is no dispute or ambiguity. The complainant had participated in the proceeding initiated by the petitioner under Section 23-A of the OLR Act. Having unsuccessful in the said proceeding, when the complainant came to know regarding the possession being handed over to the petitioner on 21.05.2016, he had approached the Court of learned J.M.F.C., Kantabanji by filing 1.C.C. Case No.18 of 2016 on 22.07.2016. The complainant had narrated the incident as has happened at 8.00 A.M. on 02.07.2016 and also contended that the petitioner had forcibly entered into the said premises wherein the complainant claimed Page 15 of 20 to be in possession. That aspect of the matter is completely contrary to the official documents relied upon by the petitioner.
12. In the aforementioned premises, even though the submission of Mr. Roul is taken to be correct, this Court need to examine as to whether subjecting the petitioner to rigors of the trial would in fact lead to his conviction or not. In the present case, the complainant/opposite party no.1 has only relied upon the oral versions of some of the witnesses recorded under Section 202 of Cr.P.C., whereas the petitioner had relied upon the official documents, which are the culmination of a quasi- judicial proceeding. Therefore, in the present case the oral version of the complainant is pitted against the documentary evidences. On this count, I have no option rather to agree with the submission made by Mr. Ray, learned counsel for the petitioner to the extent that subjecting the accused-petitioner to trial, where chances of an ultimate conviction is blink, is of no consequences.
13. In this regard, the judgment of Hon'ble Supreme Court in the case of Madhavrao (supra) assumes importance besides the judgments of the Hon'ble Supreme Court in the cases of Gian Singh Vrs. State of Page 16 of 20 Punjab & another, reported in (2012) 10 SCC 303 and B.S. Joshi and Others Vrs. State of Haryana and Another, reported in (2003) 4 SCC
675. In the case of Gian Sing (supra), it has been held as under:
"52. The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code.
55. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.
58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In Page 17 of 20 respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and- fast category can be prescribed.
61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any Page 18 of 20 compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
14. Taking into consideration the entire conspectus of facts and law, I am of the considered view that the prosecution initiated by the complainant/opposite party no.1 against the present petitioner is destined to be but a futile exercise, because the documents relied upon by the petitioner stares on the face of record and leads to only inference that the Page 19 of 20 oral statement given by the complainant/opposite party no.1 in the complaint petition is nothing but "false".
15. Accordingly, the order dated 31.08.2016 passed by the learned J.M.F.C., Kantabanji in I.C.C. Case No.18 of 2016 taking cognizance of offences against the petitioner is quashed.
16. The CRLMC is accordingly allowed and disposed of. No costs.
(S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 23rd December, 2024/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Jan-2025 15:48:40 Page 20 of 20