Jharkhand High Court
Vijay Pratap Singh & Ors vs State Of Jharkhand & Anr on 7 April, 2011
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P.No.958 of 2010
1. Vijay Pratap Singh.
2. Sudhir Kumar Singh.
3. Vinay Singh. ... ... ... ... ...Petitioners
-Versus-
1. The State of Jharkhand.
2. Smt. Moti Raj Devi. ... ... ... ...Opp. Parties
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CORAM: THE HON'BLE MR. JUSTICE D.K.SINHA
For the Petitioners: Mr. P.K.Prasad, Sr.Advocate.
Mr. Ayush Aditya, Advocate.
For the State: Mr. A.K.Sinha, A.P.P.
For the O.P.No.2: Mr. Kanti Kumar Ojha, Advocate.
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C.A.V. on 18.01.2011 : Pronounced on 07.04.2011
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D.K.Sinha,J. The petitioners have invoked the inherent jurisdiction of this Court
for quashment of the entire criminal proceeding of Complaint Case No. 1649 of
2009 (T.R.No.141 of 2010) including the order dated 14.07.2010 passed by Shri
Prakash Jha, Judicial Magistrate, 1st Class, Hazaribag by which a prima facie
case was found against the petitioners for the alleged offence under Sections
323/379/427/34of the Indian Penal Code as also under Section 3(v) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and directed summons to be issued to the accused petitioners and thereafter, the case was sent to the file of the Special Judge-cum-Additional Sessions Judge, Hazaribag for further proceeding under the special Act.
2. The prosecution story in short was that a Complaint Case No.1649 of 2009 was lodged in the Court of the Chief Judicial Magistrate, Hazaribag by the complainant-O.P.No.2 on 30.10.2009 against the petitioners alleging, inter alia, that one Heera Lal Sethi and another Panna Lal Sethi had entered into an agreement of sale on 04.01.1999 with respect to 0.02 ½ acres of land and further 7 decimals of lands on 20.11.1998, who were the lessee with respect to 2.75 acres of land which was held by them as Khas Mahal Building lease. Pursuant to such negotiations the complainant paid a sum of Rs.10,000/- (Rupees ten thousand) by way of advance with respect to agreement related to 0.02 ½ acre and further a sum of Rs.35,000/- ( Rupees Thirty Five Thousand) with respect to the agreement dated 20.11.1998 for 0.7 acre of lands. Since the nature of the land was lease hold, said Heera Lal Sethi assured the complainant to get necessary sanction and permission obtained from the competent authority and thereafter the registration of sale would be executed in her favour but, during such period, Heera Lal Sethi and Panna Lal Sethi both died and the lease hold properties were developed by the legal heirs and successors of Heera Lal Sethi since Panna Lal Sethi died issueless. The legal heirs of Heera Lal Sethi had assured the complainant that they would honour the agreement of 2 sale. It was alleged that on 20.10.2009 when the complainant-O.P.No.2 met the sons of Heera Lal Sethi and requested for execution of the conveyance deed, they flatly refused on the ground that they have already finalized the deed in favour of the petitioners and have also executed power of attorney authorizing the petitioners to develop the land who were brokers of the land.
3. It was alleged further that on 28.10.2009 at about 1 p.m. the accused persons including the petitioners along with certain labourers came over the land in question and started demolishing the boundary walls and pillars erected by her. She was also caught hold by her hair when she tried to stop them and they pushed her on the ground. She was abused in her caste name in presence of people within the public view with the intention to malign and dishonour her publicly. Her life could be saved only with the intervention of the neighbours but the accused persons snatched away her golden ornaments worth Rs. 30,000/- in the said transaction. She then went to the Harizan Police Station with the witnesses and when no case was instituted, she filed complaint before the C.J.M. as aforesaid. During course of enquiry, after recording the statement of the complainant on her solemn affirmation, three witnesses were examined and the Court having been satisfied with the prima facie case under I.P.C. as also under penal provisions of 3(v) (x) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989 committed the case record to the Special Judge.
4. Learned Sr.Counsel Mr. Prasad appearing on behalf of the petitioners submitted that the complainant-O.P.No.2 had earlier lodged F.I.R. giving rise to S.C. & S.T. (Harizan) P.S. Case No. 33 of 2009 on 30.10.2009 under Sections 341/323/494/34 of the Indian Penal Code as also under Section 3(1) (iv) (x) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities ) Act, 1989 corresponding to G.R.No.4240 of 2009 wherein the petitioners were named as accused and the complainant-O.P.No.2 had made similar allegations. After investigation, the I.O. of the case submitted final form on 16.02.2010 stating that a dispute was in the nature of land dispute and thereafter investigation was closed (Annexure-4) which was accepted by the C.J.M. on 03.07.2010.
5. The complainant-O.P.No.2 had filed a Title Suit No.101 of 2009 against the legal heirs and successors of Heera Lal Sethi claiming relief under specific performance of contract in respect of the alleged agreement dated 20.11.1998 and 04.01.1999 which is subjudice before the Munsif, Hazaribag wherein the prayer was made by the O.P.No.2 for permanent injunction.
6. As a matter of fact, the legal heirs and successor of Heera Lal Sethi had executed registered power of attorney on 02.02.2009 in favour of the petitioners authorizing them to look after, maintain and to do all development work relating to their lease hold property in question (Annexure-6). The petitioners being the power of attorney holders pursued the applications seeking 3 permission for transfer of the land, filed by the lessee before Khas Mahal Officer, Hazaribag being case No.1 of 2009-10 and the Khas Mahal authorities granted permission to the petitioners in terms of the letter dated 15.05.2010 which was communicated to them (Annexure-7). As per direction and as per condition granting permission, the petitioners had already deposited a sum of Rs.10997393.00/- in the Government Treasury by Challan dated 12.06.2010 (Annexure-8). From the above facts it would be evident, the learned Senior Counsel Mr. Prasad submitted, that the O.P.No. 2 lodged a false and frivolous complaint with mala fide intention against the petitioners though the dispute was purely of a civil nature in respect of which a Title Suit No. 101 of 2009 was pending. The Investigating Officer had already submitted final form exonerating the criminal liability of the petitioners against the Harizan Police case lodged by the complainant-O.P.No.2 at Harizan Thana, Hazaribag and the final report was accepted by the Court.
7. Finally, the learned Sr. Counsel Mr. Prasad submitted that from perusal of the entire Complaint Petition and the statement of the witnesses recorded during course of enquiry it would be evident that no offence alleged either under I.P.C. or under Special law i.e. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 could be made out against any of the petitioners. The complainant had not even asserted in her complaint that she was a member of scheduled castes or scheduled tribes as defined under Section 2 (c) of the Act.
8. As regards taking of cognizance under Section 3(v) (x) is concerned, the learned Sr. Counsel submitted that it would be evident from the perusal of the statement of the Complainant-O.P.No.2 recorded on solemn affirmation, she narrated that the accused petitioners had abused by calling her "Dhobin". There held scuffle and they had demolished the boundary wall. She had agreement with Heera Lal Sethi but no registered deed was executed. She alleged against the petitioners with specific overtact that they took away her golden ornaments and they threatened that she would be kicked out in case she would dare to come again on the land. She admitted that she had instituted a case at Harizan Thana that she filed a civil suit against the legal heirs of Heera Lal Sethi and not against the petitioners. She further admitted that Indrajeet Sethi, Rajesh Sethi and Basnati Sethi as also Uma Sethi executed power of attorney in favour of the accused persons for sale of the land in question and that the lease of the said land was renewed in favour of Indrajeet Sethi and Basanti Sethi etc. by the Government. The house of Indrajeet Sethi and Basanti Sethi was still present on the disputed plot, she admitted, therefore, the possession of the land was not transferred in her favour even if there would be an agreement to sale of the land which did not create any right in her.
49. In Gorige Pentaiah Vrs. State of A.P. & Others, reported in 2009 Criminal Law Journal 350, the Supreme Court of India in similar situation observed, " In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1) (x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent no.3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted and intimidated with intent to humiliate respondent no.3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.
On careful consideration of the prayer made in the second suit, it becomes abundantly clear that respondent No.3 was not even in possession of the suit property on the date of incident and this fact has not been disputed by the learned Counsel appearing for the State of Andhra Pradesh. When respondent No.3 was not even in possession of the land in question, the allegation made in the complaint, that the appellant demolished the wall on 14.6.2004, could not arise. The allegations are totally baseless and without any foundation. On the face of it, it looks that the criminal complaint filed by the respondent No.3 was totally false and frivolous. The complaint was filed with an oblique motive. In this view of the matter, charges under Sections 427 and 447 are also wholly illegal and unsustainable in law.
Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."
10. On the other hand, learned Counsel Mr. Kanti Kumar Ojha appearing on behalf of the O.P.No.2 submitted that when the complainant- O.P.No.2 did not find justice from Harizan Police Station, Hazaribag, she filed a complaint and after due enquiry under Section 202 Cr.P.C. a prima facie case for the offence under Section 3(v) (x) were found against the petitioners and then the case was committed to the Court of Special Judge. The question arose as to whether the petitioner had called the complainant by her caste name or abused her by her caste name or as to whether the accused had assaulted and snatched her ornaments was a question of fact which can be decided during course of trial. The Supreme Court of India in Swaran Singh & Ors Vrs. State through Standing Counsel & Anr, reported in 2008(4) JLJR S.C. 178 observed, 5 " It may be noted that the trial has still to be held and the appellants will have an opportunity of establishing their innocence in the trial. At this stage all that the High Court can see in the petition under Section 482 Cr.P.C. or in a writ petition, is whether on a perusal of the FIR, treating the allegations to be correct, a criminal offence is prima facie made out or not or whether there is any statutory bar vide Indian Oil Corporation Vs. NEPC India Ltd., (2006) 6 SCC 736 (vide para 12), State of Orissa Vs. Saroj Kumar Sahoo, (2005) 13 SCC 540 (vide paras 9 and 10), etc. At this stage the correctness or otherwise of the allegations in the FIR has not to be seen by the High Court, and that will be seen at the trial. It has to be seen whether on a perusal of the FIR a prima facie offence is made out or not."
11. In the facts and circumstances, learned Counsel appearing for the O.P.No.2 Mr. Ojha submitted that when the petitioners have raised questions, which can be decided only by the Trial Court on its own merit on the evidence adduced on behalf of the parties, the petition filed on behalf of the petitioners under Section 482 Code of Criminal Procedure for quashment of the entire criminal proceeding cannot be sustained under law.
12. Having regard to the facts and circumstances of the case, appreciation of the rival submissions made by the Counsels for the parties referred to hereinabove when the question is raised as to whether the complainant was called or abused by her caste name, thrashed or her ornaments were snatched by the accused, it comes within the domain of facts and such issues can be decided by the Trial Court.
But at the same time, when the complainant failed to project prima facie that the entire occurrence took place by which she was abused and thrashed within 'public view' in terms of the offence under Section 3(1) (x) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989, this court can well exercise its inherent powers to quash the criminal proceeding for the alleged offence.
13. With reference to the submissions that the complainant though had lodged an FIR giving rise to Hazaribag (Harizan) P.S. Case No. 33 of 2009 on 30.10.2009 under various offences of Indian Penal Code and also under Sections 3(1) (iv) (x) (xi) of the S.C. and S.T. (Prevention of Atrocities) Act, with the similar allegations as made in the instant complaint case No.1649 of 2009 but the police submitted final report exonerating the criminal liability of the petitioners observing that it was in the nature of civil dispute which was substantiated by the learned Senior Counsel that the complainant filed a Title Suit No.101 of 2009 against the legal heirs and successors of Heera Lal Sethi claiming relief under specific performance of contract with respect of 'agreement to sale' dated 20.11.1998 and 04.01.99 which is subjudice before Munsif, Hazaribag. Without entering into the merit or relief claimed in the Title Suit and the rights of the contesting parties, in the given facts and circumstances of the case, I find substance that the complainant with the intention to put duress and 6 to mount pressure upon the petitioners who were the 'power of Attorney' holders, filed a complaint though in her earlier case filed before the police for the same and similar cause of action was found false and the police observed the alleged dispute of civil nature. In Gorige Pantaiah Vrs. State of A.P. and others (supra), the Apex Court held that Authority of the Court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
14. In the facts and circumstances, I find and observe that the complaint case that was brought about by the O.P.No.2 against the petitioners was malicious, only with the intention to wreck vengeance as such their criminal proceeding in Complaint Case No.1649 of 2009 including the order impugned dated 14.07.2010 passed by Shri Prakash Jha, Judicial Magistrate, 1 st Class, Hazaribag is quashed.
15. This petition is allowed.
[D.K.Sinha,J.] P.K.S./A.F.R.