Meghalaya High Court
Shri. Leningrade Marak vs . State Of Meghalaya & Ors. on 14 September, 2022
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl. Petn. No. 20 of 2020 with
Crl. Petn. No. 21 of 2020
Crl. Petn. No. 22 of 2020
Crl. Petn. No. 23 of 2020
Crl. Petn. No. 24 of 2020
Crl. Petn. No. 25 of 2020
Crl. Petn. No. 26 of 2020
Date of Decision: 14.09.2022
Shri. Leningrade Marak Vs. State of Meghalaya & Ors.
Shri. Tubline K. Marak Vs. State of Meghalaya & Ors.
Shri. Poendro Sangma Vs. State of Meghalaya & Ors.
Shri. Hemindro K. Marak Vs. State of Meghalaya & Ors.
Shri. Krewingson Momin Vs. State of Meghalaya & Ors.
Shri. Martosh Sangma Vs. State of Meghalaya & Ors.
Shri. Mintang Marak Vs. State of Meghalaya & Ors.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. K. C. Gautam, Adv.
For the Respondent(s) : Mr. N. D. Chullai, AAG with
Mr. S. Sengupta, Addl. Sr. GA Mr. A. H. Kharwanlang, GA (For R 1 & 2) Mr. A. G. Momin, Adv. (For R 3 & 4)
i) Whether approved for reporting in Yes/No Law journals etc.:
ii) Whether approved for publication in press: Yes/No 1 COMMON JUDGMENT AND ORDER
1. The respondents No. 3 and 4 that is, Shri Manosh M. Marak and Shri. Manik M. Sangma of village Bangalmura have lodged an FIR before the Officer-in-Charge, Resubelpara Police Station, North Garo Hills directed against the petitioner herein as well as some other persons named in the said FIR namely, Shri. Leningrade Marak, Shri. Tubline K. Marak, Shri. Poendro Sangma, Shri. Hemindro K. Marak, Shri. Krewingson Momin, Shri. Martosh Sangma, Shri. Mintang Marak, Shri. Prewingson Momin and Shri. Buta Marak on the allegation of attempt to murder, physical assault and mob lynching and theft of wallet containing cash and documents as well as a mobile handset.
2. The said FIR being received by the Officer-in-Charge, Resubelpara Police Station was registered as Resubelpara P.S Case No.18(09)2020 under Section 447/341/323/427/395/307/34 IPC and was entrusted to S.I C. J. Sangma to complete the investigation.
3. In course of the investigation and during the pendency thereof, the petitioner along with some named accused in the said FIR has approached this Court with separate application under Section 482 Cr.PC and a prayer to quash the criminal proceedings initiated by FIR dated 21.09.2020.
4. Since the criminal proceedings arising out of the lodgment of the said FIR dated 21.09.2020 have been challenged by the petitioner, Shri. Leningrade 2 Marak as well as the other named accused persons, though separate but similar petitions have been filed in this regard, this Court would deem it expedient and convenient to deal with all the said petitions and to pass a common judgment thereto which is being done so herewith.
5. Heard Mr. K. C. Gautam, learned counsel for the petitioners who has submitted that the petitioners are the villagers of Bangalmura village. In this village there is a village Reserve Forest which is owned and maintained by the village.
6. On 21.09.2020 some of the villagers noticed the presence of five unknown persons who were clearing the said village Reserve Forest and the matter was immediately reported to the Secretary of the village. The Secretary, along with some village members and elders went to the Reserve Forest and inquired from those people as to why they are cutting the trees from the said forest. The five persons then told the villagers that they are felling the trees on the instruction of the respondent No. 3 who had employed them.
7. On the work of the said five persons being stopped, the respondent No. 3 accompanied by the respondent No. 4 came to the village and confronted the villagers with a query as to why the labourers were instructed from felling the trees and clearing the lands which the respondent No. 3 claimed as his own. The villagers maintained that the Reserve Forest is the property of the village and 3 that the respondent No. 3 has no right over the same. A heated argument took place between the two parties with the respondent No. 3 finally leaving the village but not before threatening the villagers of dire consequences.
8. The respondent No. 3 has stated in the FIR that he had gone to the place of occurrence to enquire as to why his labourers were detained by the local people but was confronted by a violent mob, who on being instigated by the petitioners herein started to beat him and the respondent No. 4 by heavy bamboo sticks which have seriously injured them so that they had to go for medical treatment. The personal vehicle of Respondent No. 3 being a Maruti Celerio No. ML-08-E-1777 was also badly damaged and his mobile handset and wallet containing ₹ 1700/- (rupees one thousand seven hundred) only along with some other documents was also seized by the mob.
9. The learned counsel for the petitioners has further submitted that in order to refute the charges of the respondents No. 3 and 4 in the said FIR and to present the views of the villagers, had filed a counter FIR dated 23.09.2020 through the Secretary of the village to bring out the correct facts, however the police have not yet taken any steps on the FIR dated 23.09.2020.
10. It was also mentioned that the petitioners apprehending arrest had approached the Court of the learned Sessions Judge at Resubelpara with application for grant of pre-arrest bail and though initially interim bail was 4 granted vide order dated 24.09.2020, the application was later rejected vide order dated 08.10.2020 on the ground of non-compliance with the conditions mentioned in the order. The petitioners thereafter approached this Court with a similar prayer for grant of pre-arrest bail and this Court vide order dated 04.11.2020 in AB. No. 16-24 of 2020 had allowed the prayer for grant of pre- arrest bail.
11. According to the learned counsel for the petitioners the land was handed over to the village authorities by the predecessor of the respondent No. 3 who was the then Nokma of Resu A'king on 11.10.2017 and the land was maintained and protected as Reserve Forest in accordance with Garo Customary Law. The said Nokma has also acknowledged receipt for the sum of ₹ 2000/- (Rupees two thousand) only on 11.10.2017 from the Bangalmura Reserve Committee as Reserve Renewal Fees.
12. The learned counsel for the petitioners has submitted that there has occurred a claim and counter claim over the said land claimed by the villagers as a Reserve Forest of the village and in counter, claimed by the respondent No. 3 as his private property. Therefore, essentially a dispute over landed property has arisen which dispute can only be adjudicated upon by a Civil Court of competent jurisdiction and as such, the attempt of the respondents No. 3 and 4 to paint a criminal colour to a dispute which is civil in nature is nothing but an 5 attempt to wreck vengeance on the other residents of the village.
13. The learned counsel for the petitioners has submitted that the Investigating Officer on finding no evidence of involvement of the petitioners as complained, has file the Final Report with the observation that the case against the petitioners be closed. However, on objection raised by the respondent No. 3 before the Court of the learned Chief Judicial Magistrate, the learned Chief Judicial Magistrate has directed the Investigating Officer to re- investigate the matter.
14. The Investigating Officer, apparently on being directed has conducted the re-investigation and has accordingly filed the Final Form by pointing out that from the facts and circumstances of the case, a prima facie case under Sections 447/341/342/323/427/34 IPC was found well established against the accused persons/petitioners herein. It may be pointed out that out of all the petitioners herein, two persons who had figured in the FIR, namely, Shri. Buta K. Marak and Shri Prewinson G. Momin have been discharged due to insufficient evidence against them. The filing of the charge sheet is nothing but just to comply with the Court's order and no substantial investigation has been carried out as such, there is no evidence against any of the petitioners.
15. The learned counsel for the petitioners has reiterated that there is no evidence against any of the petitioners as is apparent from the charge sheet 6 which speaks of mob violence, but not specifically directed at the actions of any of the petitioners herein.
16. Going through the charge sheet, the learned counsel for the petitioners has pointed to some parts of the same at the last but two paragraph where the I/O has recorded the findings and observation of the fresh investigation and has maintained that this is purely a dispute civil in nature where the Nokma, the respondent No. 3 herein is trying to assert his authority over the said village Reserve Forest. Secondly, this FIR was filed to wreak vengeance upon the villagers including the petitioners herein since they had opposed him on his plans to take over the said Reserve Forest.
17. It is finally submitted that there is no prima facie material against any of the petitioners that would warrant a trial for trespass, restraint, confinement or mischief and allowing the trial would only be an abuse of the process of the court and ends of justice would be met if the proceedings are put to a stop at this juncture even if the charge sheet has been filed. In this regard, the case of Joseph Salvaraj v. State of Gujarat and Ors: (2011) 7 SCC 59, para 15, 16, 17 and 18 was referred to support his contention that even if the charge sheet is filed, the court can still look into it to examine if there are any ingredients or materials to warrant prosecution of the accused.
18. Mr. A.G. Momin, learned counsel for the respondents No. 3 and 4 7 respectively has submitted that on fact, the said Reserve Forest though allotted to the village by the Nokma, cannot be said to be the exclusive property of the village Bangalmura as the allotment document annexed in this petition as Annexure-III with Annexure-III-A as the English translated copy has clearly indicated that the Nokma himself has the authority over the land and he can take back the land from the village at any point of time.
19. Mr. Momin has however laid stress on the fact that the chargesheet filed by the I/O as a result of fresh investigation has clearly revealed the fact that an altercation has taken place between the petitioners herein and the respondents No. 3 and 4 on 21.09.2020 which incident was also captured on video. Apart from this, the medical report has clearly shown that the respondent No. 3 had sustained simple injuries in the scalp in occipital region as confirmed by the medical doctor who has examined at Resubelpara CHC. The I/O has also further reported that the vehicle of the respondent No. ML- 08-E-1777 was also found to be damaged from the front and back windshield. These are all indications that the respondents No. 3 and 4 were assaulted by the petitioners herein and as such, the I/O has come to a correct finding that a prima facie case is found well established against the petitioners/accused to prosecute them in accordance with law.
20. In support of his case, the learned counsel has cited the following 8 authorities:
i. State of Tamil Nadu v. Mariya Anton Vijay: 2015 (9) SCC 294 para 54 and 55;
ii. M/s Neeharika, Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors: 2021 SCC Online SC 315 paras 37, 52, 53, 60 and iii. Ramveer Upadhyay & Anr. v. State of U.P & Anr: 2022 SCC Online SC 484 para 39
21. Mr. N. D. Chullai, learned AAG appearing for the State respondent has submitted that this Court in exercise of its inherent powers under Section 482 would do it with circumspection taking into account the facts and circumstances of the case. In this case, during the pendency of these proceedings, the I/O has filed the chargesheet dated 19.06.2022 based on the order of the Court for fresh investigation which was duly completed. In the chargesheet, the I/O has clearly pointed and drawn out the involvement of the petitioners in the case under investigation and has examined as many as sixteen witnesses whose name were duly listed as PWs at page 18 of the chargesheet. The investigation having revealed the involvement of the petitioners in the alleged assault and other offences committed against the respondents No. 3 and 4, therefore the matter has to be thoroughly examined by the trial court and at this stage, the criminal proceedings may not be set aside and quashed. 9
22. This Court has given careful thought and application of mind to the case of the petitioners as well as the objections raised by the respondents herein. The only consideration to be looked into is whether frivolous or false allegations have been made against the petitioners herein and whether the offences alleged in the FIR discloses the commission of any offence. On this premise, the case of the parties can be effectively appreciated.
23. The factual sequence as stated above need not be reiterated, but may be referred to from time to time to bring out relevant points of discussion, observation or findings in this case.
24. The fact that on the date of the incident that is, 21.09.2020 a group of five persons came to the village Reserve Forest and started cutting the trees therein and on being questioned by the villagers have informed them that it was on the direction of the respondent No. 3 that they have done so cannot be denied.
25. The fact that the respondents No. 3 and 4 came to the place of occurrence and confronted the villagers as to why they have obstructed the labourers who were felling trees, as a result of which a heated argument ensued is also not denied.
26. That it was within the knowledge of the villagers, particularly the petitioners herein that the respondents No. 3 and 4 have filed an FIR against them under certain provisions of law is also a fact.
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27. The learned counsel for the petitioners has not been able to point out from the records that the alleged incident and the fracas between the opposing parties, that is, the group led by the petitioners and the group under the respondents No. 3 and 4 respectively had not happened.
28. In fact, as pointed by the learned counsel for the respondents No. 3 and 4 as well as the learned AAG, the charge sheet has revealed that the Investigating Officer has thoroughly investigated the matter and has examined a number of witnesses in this regard. The findings do not give any indication that the allegations in the FIR as to the offences linked thereto has no basis.
29. "To quash or not to quash", that is the question here. Numerous decisions of the Hon'ble Supreme Court as well as High Court in this country have wax eloquent about the inherent power of the High Court under Section 482 Cr.P.C. The decision of the Apex Court in the case of State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 has set the standard in this respect. Paragraph 102 of the judgment has been quoted so often by the court dealing with the issue of exercise of inherent power by the High Court under Section 482 Cr.PC. The said paragraph is reproduced herein for better elucidation.
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of 11 illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance 12 on the accused and with a view to spite him due to private and personal grudge.
30. In the case of Neerharika Infrastructure (supra), the Hon'ble Supreme Court, cited by the respondents No. 3 & 4, at para 38 has quoted para 5, 7, & 8 of the judgment passed in the case of State of A.P. v. Golconda Lingaswamy:
(2004) 6 SCC 122. Paragraph 38 is also worth mentioning, the same which reads as follows:
"38. In the case of Golconda Lingaswamy (supra), after considering the decisions of this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra) and other decisions on the exercise of inherent powers by the High Court under Section 482 Cr.P.C, in paragraphs 5, 7 and 8, it is observed and held as under:
"5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely: (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle 13 quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and 14 circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognisable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335). A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 102) "102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognisable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognisable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.15
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard- and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary (AIR 1993 SC 892) and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1)]. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to 16 determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding."
31. While applying the guidelines and principles laid down by the Hon'ble Supreme Court at para 102 of the Bhajan Lal case, in the context of the dispute between the parties vis-à-vis the FIR dated 21.09.2020 the first guideline would be relevant, that is, if the allegation made in the FIR or the complaint do not prima facie constitute any offence or make out a case against the accused, then 17 the benefit of exercise of power under Section 482 will go or rather will be in favour of the accused to the extent of quashing of the criminal proceedings related thereto.
32. As is evident from the preceding paragraphs above and on consideration of the submission made on the factual aspect of the matter, it is clear that the allegations made against the petitioners in the FIR has substance and they do disclosed the commission of cognizable offences and as such, in the words of the Hon'ble Supreme Court at para 7 of the Golgonda case reproduced in the case of Neeharika Infrastructure (supra), "...the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death..." speaking of the application of inherent power under Section 482 Cr.PC which under the facts and circumstances noticed above cannot be made applicable to the case of the petitioners.
33. In view of the above, these petitions are found to be devoid of merits, the same are hereby dismissed.
34. Petitions disposed of. No costs.
Judge Meghalaya 14.09.2022 "Tiprilynti-PS"
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