Karthik Jayashankar And Another ...... ... vs State Of Uttarakhand on 22 August, 2022

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Uttarakhand High Court

Karthik Jayashankar And Another ...... ... vs State Of Uttarakhand on 22 August, 2022

Bench: Ravindra Maithani

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL


      Criminal Misc. Application No. 530 of 2020


Karthik Jayashankar and another                  ...... Petitioners

                                 Vs.

State of Uttarakhand
and another                                     ..... Respondents



Present:-
            Mr. P.B. Suresh and Mr. B.S. Adhikari, Advocates for the
            petitioners.
            Mr. V.K. Jemini, D.A.G. with Ms. Meena Bisht, Brief
            Holder for the State.
            Mr. Arvind Vashistha, Senior Advocate assisted by
            Mr. Vivek Pathak, Advocate for the respondent no.2



                            JUDGMENT

Hon'ble Ravindra Maithani, J.(Oral) The challenge in this petition is made to chargesheet dated 28.07.2020 as well as cognizance order dated 21.07.2020, passed in Special Sessions Trial No. 06 of 2020, State Vs. Smt. Parvati Lal and another, by the court of District and Sessions Judge, Special Judge, SC/ST Act, Nainital ("the case") as well as the entire proceedings of the case.

2. Heard learned counsel for the parties and perused the record.

3. Facts necessary to appreciate the controversy, briefly stated, are as follows. The case is based on an FIR No. 03 of 2020, lodged under Sections 504, 506 & 427 IPC and Sections 3(i)(r), 3(i)(s), 3(i)(z) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("the Act"), by the respondent no.2 (the informant) on 01.06.2020 at Revenue Police Station Sarna, Tehsil Dhari, District Nainital. According to it, on 27.05.2020, when the informant along with his son and a Vijay Adhikari visited his property situated in Jeeling Estate, he found that the locks of his house were broken and the furniture and other articles were missing from the house. At that time, the petitioners, according to the FIR, abused the informant & insulted him with caste coloured remarks. They also threatened him that they would not allow the informant to stay at that place. It is this FIR, in which, after investigation, chargesheet has been submitted, on which cognizance was taken. It is impugned herein.

4. Learned counsel appearing for the petitioners would submit that the petitioners have challenged the chargesheet. In case, the chargesheet is quashed, the summoning order automatically would 3 extinct. He would submit the following points in his arguments:-

4.1. The summoning order is an interlocutory order. It is not appealable, as per Section 14A of the Act.

4.2. Only bail is an interlocutory order, which is appealable, as per Section 14A(2) of the Act. On this aspect, learned counsel has referred to the judgment in the case of V.C. Shukla Vs. State through CBI, 1980 Supp SCC 92.

4.3. In the case of V.C. Shukla (supra), the Hon'ble Supreme Court has laid down the test to determine as to what is interlocutory order and what amounts to final order. The Hon'ble Supreme Court observed as hereunder:-

"34. There is yet another aspect of the matter which has to be considered so far as this decision is concerned, to which we shall advert when we deal with the last plank of the argument of the learned counsel for the appellant. Suffice it to say at the moment that the case referred to also fully endorses the view taken by the Federal Court and the English decisions viz. that an order is not a final but an interlocutory one if it does not determine or decide the rights of parties once for all. Thus, on a consideration 4 of the authorities, mentioned above, the following propositions emerge:

"(1) that an order which does not determine the right of the parties but only one aspect of the suit or the trial is an interlocutory order;

(2) that the concept of interlocutory order has to be explained in contradistinction to a final order.

In other words, if an order is not a final order, it would be an interlocutory order;

(3) that one of the tests generally accepted by the English courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue, because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi-final orders;

(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter; (5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Article 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an 5 order framing charges, the Act works serious injustice to the accused."

4.4. Section 14A of the Act does not oust the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 ("the Code"). In order to ensure substantial justice, this Court, in a given case, may exercise this jurisdiction despite bar under Section 14A of the Act.

4.5. In support of his contention, learned counsel for the petitioners has placed reliance on the principles of law, as laid down in the cases of Prathvi Raj Chauhan Vs. Union of India and Others, 2020 (4) SCC 727, In Re.- Provision of Section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, 2018 SCC OnLine All 2087 ("the Allahabad Case") and Union of India Vs. State of Maharashtra, 2020 (4) SCC 761.

4.6. In the case of Prathvi Raj Chauhan (supra), the Hon'ble Supreme Court interpreted the provisions of Sections 18 and 18A of the Act. Section 18 of the Act provides that Section 438 of the Code shall not apply to the person committing an offence under the Act. According to it, "Nothing in Section 438 of the Code shall apply in relation to any case involving the 6 arrest of any person on an accusation of having committed an offence under this Act". In the case of Prathvi Raj Chauhan (supra), the Hon'ble Supreme Court considered these aspects and observed that if prima facie case under the provisions of the Act is not made out, the bar does not come into play. In paras 11 and 32, the Hon'ble Supreme Court observed as hereunder:-

"11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions."

"32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail."

4.7. In the Allahabad Case, the applicability of Section 14A of the Act has been discussed. In Para 93 of the judgment, proposition of law has been propounded by the Hon'ble Court and it is observed that "While answering this question, we are conscious that Article 226 and 227 are part of the basic structure of the Constitution. These powers, as held by the 7 Supreme Court in State (through Special Cell, New Delhi) cannot be limited or fettered by any act of legislature. The parameters and the grounds on which the provisions of Section 482 Cr.P.C. are entitled to be invoked are also well settled. The question therefore really is not one of ouster of these jurisdictions but whether they are entitled to be invoked in respect of judgments, sentences or orders which are otherwise appelable under Section 14A." 4.8. Essentially, the Hon'ble High Court answered this question in Para 121 B, which is as hereunder:-

"121............................................................... ..............................................................................

B. Whether in view of the provisions contained in Section 14-A of the Amending Act, a petition under the provisions of Article 226/227 of the Constitution of India or a revision under Section 397 of the Code of Criminal Procedure or a petition under Section 482 Cr.P.C., is maintainable. OR in other words, whether by virtue of Section 14-A of the Amending Act, the powers of the High Court under Articles 226/227 of the Constitution or its revisional powers or the powers under Section 482 Cr.P.C. stand ousted?

We therefore answer Question (B) by holding that while the constitutional and inherent powers of this Court are not "ousted" by Section 14A, they cannot be invoked in cases and situations where an appeal would lie under Section 14A.

Insofar as the powers of the Court with respect to the revisional jurisdiction is concerned, we find that the provisions of Section 397 Cr.P.C. stand impliedly excluded by virtue of the special provisions made in Section 14A. This, we hold also in light of our finding that the word "order"

as occurring in sub-section(1) of Section 14A would also include intermediate orders." 4.9. In the case of Union of India (supra) also applicability of the provisions of Section 482 of the Code, in the cases pertaining to offences under the Act, has been considered by the Hon'ble Supreme Court. The Hon'ble Supreme Court also considered the aspect of lodging of false cases and remedy to the affected persons therein. It has been held that in such eventualities, the proceeding under Section 482 of the Code may be resorted to. In Paras 52 and 60, the Hon'ble Supreme Court observed as hereunder:-

"52. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, 9 it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care of in proceeding under Section 482 CrPC."

"60. In case any person apprehends that he may be arrested, harassed and implicated falsely, he can approach the High Court for quashing the FIR under Section 482 as observed in State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 :

2005 SCC (Cri) 415]."

4.10. No prima facie case is made out. Learned counsel for the petitioners would submit that essentially, there is dispute of property between the parties and whatever is alleged to have happened, according to the FIR itself, is due to dispute with regard to property. In such cases, it is argued that the provisions of the Act are not applicable.

4.11. In support of his contention, learned counsel for the petitioners has placed reliance upon the principles of law, as laid down in the case of Khuman Singh Vs. State of Madhya Pradesh, 2019 SCC Online SC 1104 and Hitesh Verma Vs. State of Uttarakhand and Another, (2020) 10 SCC 710.

4.12. In the case of Khuman Singh (supra), the Hon'ble Supreme Court quoted with approval the principles of law, as laid down in the case of Dinesh alias Buddha Vs. State of Rajasthan, (2006) 3 SCC 771 and in Para 15, the Hon'ble Court observed as hereunder:-

"15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine."

4.13. This principle has further been followed in the case of Hitesh Verma (supra). In Paras 13 and 18, the Hon'ble Supreme Court, in the case of Hitesh Verma (supra) observed as hereunder:-

"13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to 11 Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that Respondent has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that Respondent 2 is a member of Scheduled Cast."

"18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out."

4.14. The provisions of the Act are also not applicable, because the alleged incident did not happen in a public view. In support of his contention, learned counsel for the petitioners further placed reliance on the principles, as laid donwn in the case of Hitesh Verma 12 (supra), wherein, the provision of the Act has been referred to. The Court has interpreted the phrase "any place within public view". In para 14 of the judgment, the Hon'ble Court has observed as hereunder:-

"14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh v. State [Swaran Singh v. State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] . The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view (sic) [Ed. : This sentence appears to be contrary to what is stated below in the extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-e, and in the application of this principle in para 15, below:"Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view."] . The Court held as under : (SCC pp. 443-44, para 28) "28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was 13 certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies."

4.15. The investigation has been hostile in the case. The Investigating Officer ("IO") had given a notice under Section 14A of the Act on 24.06.2020 to the petitioner no.1 to appear before him on 25.06.2020. The petitioner represented through lawyer and sought some time. They also filed a Writ Petition challenging the FIR and in that Writ Petition (Criminal) No. 1855 of 2020, Karthik Jayashankar and Another Vs. State of Uttarakhand and Another, on 26.06.2020, the Court has been pleased to pass interim order restraining the State to take any 14 coercive steps against the petitioners. But, it is argued that thereafter, chargesheet was filed by the IO on 20.07.2020, without further requiring the presence of the petitioners. It is also argued that, in fact, in the FIR, Vijay Adhikari has been made a witness deliberately, so as to make a case against the petitioners. Learned counsel for the petitioner would submit that earlier in the year 2017 also, there was a dispute between the petitioners and the informant, in which on 12.10.2017, a settlement was entered into, which was also witnessed by Vijay Adhikari.

4.16. The FIR and subsequent filing of the chargesheet is malafide. It is argued that, in fact, petitioner no.1 is a lawyer. He is representing a Birendra Singh against some builders, who want to destroy the ecology of that area in a Writ Petition (PIL) No. 44 of 2020, Birendra Singh Vs. Union of India and Others, in this Court ("the PIL"). It is being argued that in the PIL, a Devanya Resorts Pvt. Ltd. ( the Builder) is represented through its Managing Director, Murari Sah, who is close associate of the informant. Since the petitioner no.1 is agitating the issue of local residents, so as to restrain the builder from deforesting the area, it is argued that the petitioners have been falsely implicated. Reference 15 has also been made to other litigation, which the petitioner no.1 is agitating in the Hon'ble Supreme Court that being Civil Appeal No. 8560 of 2018, Birendra Singh Vs. Ministry of Environment Forest and Climate Change and Others ("the Civil Appeal"). It is argued that, in fact, 8.5 hectares land has been carved out as forest land and this, according to the learned counsel for the petitioners, is also one of the reasons to falsely implicate the petitioners.

4.17. The FIR is not reliable because, according to it, it was given on 28.05.2020, whereas, it was lodged on 01.06.2020.

4.18. Learned counsel for the petitioners would submit that the petitioner no.1 is a practicing Advocate. In order to damage his career, due to malafide, so that the petitioner no.1 may not represent the local residents in the PIL or before the Hon'ble Supreme Court against the deeds of the builder, the proceedings have been initiated, which deserves to be quashed.

5. On the other hand, learned Senior Counsel for the respondent no.2 would submit that there is no substance that the proceedings are biased. It is argued that in order to attract malafide in any action, the 16 matter should be part of investigation like Court's order, etc. or it is should be of sterling nature. But, it is argued that it is lacking in the instant case. In fact, learned Senior Counsel has placed reliance on the principles of law, as laid down in the case of Kaptan Singh Vs. State of Uttar Pradesh, (2021) 9 SCC 35, to argue that in the proceedings under Section 482 of the Code, the only material collected during investigation may be looked into. Beyond that, the matter may not be examined. 5.1. In the case of Kaptan Singh (supra), the decision in a proceeding under Section 482 of the Code, was not upheld because it was found that the some disputed joint notarized affidavits were considered by the Court. Learned Senior Counsel raised the following points in his submission:-

5.2. The petition is not maintainable.

5.3. It is argued that Section 14A of the Act does not oust the jurisdiction of the Court under Section 482 of the Code, instead, it gives alternate remedy, where the petitioners could ventilate their grievances. Reference as been made to Section 8C of the Act to argue that, in fact, the petitioner knew and they were aware of the caste of the informant.

5.4. The order summoning an accused is not an interlocutory order. Reference has been made to the judgment in the case of Sanjay Kumar Rai Vs. State of Uttar Pradesh and Another, 2021 SCC Online SC 367 and Prabhu Chawla Vs. State of Rajasthan and Another, 2016 (16) SCC 30.

5.5. In the case of Prabhu Chawla (supra), the Hon'ble Supreme Court decided controversy between two conflicting judgments and held that the law laid down in the case of Dhariwal Tobacco Products Ltd. Vs. State of Maharashtra, 2009 (2) SCC 370 is a good law. In the case of Dhariwal (supra), the Hon'ble Supreme Court has categorically held that "Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code".

5.6. In the case of Sanjay Kumar Rai (supra), the Hon'ble Supreme Court, inter alia, held that "orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of Cr.P.C."

5.7. In the instant case, prima facie case is made out. The concept of public view does not mean public place. It should be "a place within public view".

5.8. Learned Senior Counsel has also referred to the judgment in the case of Hitesh Verma (supra). The same paragraph, which has already been quoted hereinabove, wherein a distinction between "public place" and "a place within public view" has been made.

5.9. It is argued by learned Senior Counsel that the FIR discloses commission of offences and no interference is warranted.

5.10. The investigation has been done as per law. It is not at all required for the Investigating Officer to take into consideration the defence given by the accused.

5.11. Admittedly, according to learned Senior Counsel, a notice under Section 41A of the Code was given to the petitioners but they did not participate in the proceedings. They took time. The Investigating Officer, after completing the Investigation submitted the chargesheet. It cannot be faulted with. It cannot be said that the investigation is hostile. The Investigating Officer had approached the petitioners.

5.12. It is the petitioners, who did not participate in the investigation. The proceedings are not malafide.

5.13. Mere statement that the proceedings are malafide is not enough to quash the proceedings under Section 482 of the Code. There should be material to establish it. If the points are debatable, it requires proof.

They cannot be taken into consideration in a proceeding to quash a criminal prosecution at its threshold.

6. Learned State Counsel would submit that the petition is not maintainable. Prima facie offence is made out. The informant and the witnesses have supported the prosecution case. Factual aspects may not be examined in this proceeding, therefore, no interference is warranted in the matter and the petition is liable to be dismissed.

7. Question of maintainability of the petition has been raised, It is argued that Section 14A of the Act gives a remedy. Hence, the instant petition is not maintainable. Section 14A of the Act is as follows:-

"14A. Appeals.--(1) Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.

(2) Notwithstanding anything contained in sub-

section (3) of section 378 of the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie to 20 the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

(3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days: Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days. (4) Every appeal preferred under sub-section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.

8. The provisions of the Act are undoubtedly made to protect a section of society so as to improve the socio-economic condition of that group. The statement of objects and reasons of the Act speaks in volume about it.

9. Section 14A of the Act, as quoted hereinabove, makes a departure in the matter of appeal from the provision of the Code and according to it, all orders are appealable, except interlocutory orders.

10. Section 14A(2) provides that an order granting or refusing bail in the matter shall also be appealable. 21

11. Learned counsel for the petitioners referred to the provision of Sections 4 and 5 of the Code to argue that, in fact, specific provisions have been made under the Act with regard to appeal. Therefore, with regard to appeal qua the interlocutory orders, the provisions of the Code on the subject shall not be applicable. He would argue that Section 14A(1) of the Act bars appeal in the cases of interlocutory orders, but clarifies that such interlocutory orders should be bail alone as given in Sub Section 2 to it. This interpretation perhaps may not be a correct interpretation of Section 14A(1) and Section 14A(2) of the Act.

12. Sections 4 and 5 of the Code makes provision with regard to applicability of the provisions of the Code. They are as hereunder:-

"4. Trial of offences under the Indian Penal Code and other laws.--(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating 22 the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences."

"5. Saving.--Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

13. The provision of Section 5 of the Code makes it abundantly clear that if there are specific provisions under any specific law that shall be made applicable and in the absence of such provisions, the provisions of the Code shall be applicable.

14. Section 14A of the Act bars appeal in the cases of interlocutory orders. Section 14A(2) of the Act makes bail orders appealable. In fact, Section 14A(2) of the Act does not explain as to what would be the interlocutory orders for the application of Section 14A(1) of the Act. Instead, it carves out an exception from the interlocutory orders with regard to grant and refusal of bail. It is true that in the case of V.C. Shukla (supra), the Hon'ble Supreme Court, on this aspect, summed up the principles in para 34 and made two category of cases, either interlocutory or final orders. But, the fact remains 23 with regard to summoning order, in the case of Prabhu Chawla (supra), the Hon'ble Supreme Court upheld the principles of law, as laid down in the case of Dhariwal (supra), wherein, it is categorically held that the order of summoning an accused is not an interlocutory order.

15. Section 14A(1) makes a provision for preferring appeals in the matters except against interlocutory orders. Does it mean that the petitioners would have filed appeal and the petition under Section 482 of the Code is not maintainable?

16. The jurisdiction under Section 482 of the Code is exercised to prevent the abuse of the process of any court or to enforce any order of the Court or otherwise to secure the end of justice. It is such a wide jurisdiction but much guided by the principles of law as laid down by the Hon'ble Supreme Court in umpteen judgments.

17. In the case of Dinesh Dutt Joshi Vs. State of Rajasthan and Another, (2001) 8 SCC 570, the Hon'ble Supreme Court observed that the provision may be exercised to do that real and substantial justice, for the administration of which alone it exists. In Para 6, the Hon'ble Supreme Court observed as hereunder:- 24

"6. Section 482 of the Code of Criminal Procedure confers upon the High Court inherent powers to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is a well-established principle of law that every court has inherent power to act ex debito justitiae -- to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the court. The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases."

18. On behalf of the petitioners, challenge to the proceedings have been made, inter alia, on the ground that (i) no prima facie case is made out and (ii) the provisions are based on malafide.

19. In the case of State of Haryana Vs. Ch. Bhajan Lal, AIR 1992 SC 604, the Hon'ble Supreme Court illustratively laid down the circumstances under which the jurisdiction may be exercised. In Para 102 of it, the Hon'ble Supreme Court observed as hereunder:- 25

"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 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 26 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 on the accused and with a view to spite him due to private and personal grudge."

20. Section 18 of the Act bars applicability of Section 438 of the Code in the matters of the cases pertaining under the Act. But, in the case of Union of India (supra), the Hon'ble Supreme Court categorically held that "if the cases under the Act has been falsely filed it can be taken care of in proceeding under Section 482 of the Code." Para 52 of the judgment has already been quoted hereinabove. Similarly, in the case of Prathvi Raj Chauhan (supra) also, the same principle has been laid down.

21. The jurisdiction, under Section 482 of the Code, in the matters of offences under the Act, has not been ousted. It cannot be said that the moment a proceeding is challenged under Section 482 of the Code, 27 at the outset, it may not be entertained on the ground that it is under the provision of the Act. There may be circumstances of a given case, which may require this Court to look into the aspect of the matter.

22. If prima facie case is not made out under the provisions of the Act, this Court would be well within its jurisdiction to consider the matter under Section 482 of the Code. Impliedly, it may then be said that the bar of Section 14A of the Act would not be applicable. The Court proceeds to examine it now.

23. Admittedly, this is not the first round of litigation between the parties. Earlier in the Year 2017, parties had lodged reports against each other. That matter was settled by a settlement dated 12.10.2017. It is an important document. It has been filed by the petitioners as Annexure 2 to the petition. According to it, both parties had then lodged FIR against each other. The first party, according to this compromise, is the informant. As per the settlement, the informant had to get demarcation of his property done, in which the petitioners were to assist. What is being argued is that the informant did not get demarcation. He lodged false FIR.

24. The settlement dated 12.10.2017 has been referred to in Para 6 of the petition filed by the petitioners. It is replied in Para 42 of its counter affidavit by the informant. Admittedly, the parties are in property dispute. Para 42 of the counter affidavit filed by the informant makes it abundantly clear that the parties are disputing ownership or possession of certain property. In order to better appreciate this controversy, it would be apt to reproduce a part of this Para 42 of the counter affidavit, which is as hereunder:-

"It is rather the Applicant No. 1 who has disturbed the peace and harmony of Jilling ever since his decision to start managing the affairs of his 'Jilling Estate'. Upon his arrival in 2017, the Applicant No. 1 instigated his proxy petitioner Mr. Birendra Singh to file a frivolous and baseless partition suit in order to illegally grab the land of the Respondent No. 2, which land had been sold by the father-in-law of the said proxy petitioner in 1982. As submitted above, the partition suit has been dismissed by the Executive Magistrate, First Class, Nainital by an order dated 06.03.2018 on the grounds that the land in question has already been conveyed in favor of purchaser by way of duly registered sale deeds. The Applicant No. 1 also disturbed the peace in the area by encroaching upon land of local residents as well as public land and has been representing to the public as the owner of the said land. As regards the allegations pertaining to compromise dated 12.10.2017, the Respondent No. 2 agreed to not press for registration of his complaint against the said 29 Applicant, solely at the insistence of other local residents in order to maintain peace and harmony in the area."

25. It is evident from a bare perusal of this Para 42 of the counter affidavit of the informant that he claims that he had purchased certain property from the father-in-law of the petitioner no.1. The settlement dated 12.10.2017 had been admitted. The instant dispute is also a property dispute. It does not originate merely because the informant belongs to a particular caste or community.

26. The principles of law, as laid down in the case of Khuman Singh (supra) and Hitesh Verma (supra) squarely apply in the instant case.

27. In the instant case, the parties are disputing over possession and ownership of a property. The allegation of abusing with caste colored remarks is against the petitioners, who also claim title of possession over property. If the informant happens to be a member of a particular caste, it does not make out a case under the provisions of the Act. Undoubtedly, in the instant case, prima facie, offence under the provisions of the Act are not made out.

28. In view of this discussion, this Court is of the view that the petition under Section 482 of the Code is maintainable in this case. The bar under Section 14A of the Act gets lifted.

29. On behalf of the petitioners, it is argued that the incident did not take place at a public place. Hence, the provisions of the Act are not applicable. This argument has less force. What is argued is that for attracting the provisions of the Act, the offence should happen in a public place. This argument has less merit for acceptance. In fact, as stated hereinabove, in the case of Hitesh Verma (supra), the Hon'ble Supreme Court has held that it is "a place within public view" and not "a public place".

30. It is the case of the informant that the place is within public view. Even otherwise, it is stated in the FIR that an outsider, Vijay Adhikari, did witness the incident. But this aspect has no significance now because this Court has already held that the parties are litigating or in dispute with regard to a property and the incident took place due to dispute over the ownership and possession of the property, therefore, the provision of the Act are not applicable.

31. It is argued that the investigation is hostile. The IO had given a notice to the petitioner no.1 under Section 41 A of the Code, requiring him to appear on 25.06.2020. In para 21 of the petition, the petitioners have stated about notice under Section 41A of the Code. In Para 22, the petitioners write that, in fact, when they received notice, they requested the IO through their counsel, but their application was not accepted by the IO.

32. The State, in its counter affidavit (where paras 21 and 22 of the petition are referred to), in para 9 did not categorically state about paras 21 and 22 of the petition. It is stated that such allegations have been leveled merely to safeguard their skin from the clutches of law.

33. Be it as it may, merely because the petitioners were not examined during investigation, it cannot be said that the IO was hostile towards the investigation. It would be too far stretching the action of the IO.

34. Learned counsel for the petitioners has also argued that the investigation should be fair and impartial and it is an attribute of Right to Life also. He would refer to the principles of law, as laid down in the 32 case of Babubhai Vs. State of Gujarat and Others 2010(12) SCC 254. In para 32 of it, the Hon'ble Supreme Court observed as hereunder:-

"32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] , Jamuna Chaudhary v. State of Bihar [(1974) 3 SCC 774 :

1974 SCC (Cri) 250 : AIR 1974 SC 1822] , SCC at p. 780, para 11 and Mahmood v. State of U.P. [(1976) 1 SCC 542 : 1976 SCC (Cri) 72 : AIR 1976 SC 69] )"

35. The proposition of law may not be doubted. A fair investigation may only ensure a fair trial.

36. It is also argued that the FIR was given on 28.05.2020, but it was lodged on 01.06.2020. These issues may not be looked into in a proceeding under 33 Section 482 of the Code. Why was it so done? Has the informant given the FIR on 28.05.2020? If so, why the IO did not lodge it? These questions may perhaps, if required, be scrutinized at the stage of trial.

37. What is being argued is the malafide in the proceedings. This aspect definitely requires little more scrutiny. It is the case of the petitioners that certain builders want to grab the property in the hill area in District Nainital known as 'Jilling Estate'. One of the local residents filed the PIL that is being represented by the petitioner no.1 as a lawyer in which the builders are party. In the PIL, he is the respondent no.3. The allegation is that a Murari Sah, with the help of the informant, is falsely trying to implicate the petitioners so as to resist him from appearing in such cases. Reference has also been made to the proceedings before the Hon'ble Supreme Court in which directions were given for demarcation of certain land. The proceedings to the Hon'ble Supreme Court, as filed by the petitioners as Annexure 2, reveal that the petitioner no.1 represented Birendra Singh, in those proceedings.

38. It has also been argued that, in fact, in a proceeding before the National Green Tribunal (NGT), the Builder had filed certain documents, which, in the 34 normal course, would have been in the possession of the informant. There were letters written by the informant to the family members of the Birendra Singh, who the petitioner no.1 was representing in various court proceedings. Those letters had returned un-served. In the normal course, those letters should have been in the possession of the informant. But, it is argued that in the NGT proceedings, Murari Sah filed those un-served letters along with his affidavits. It is argued that it shows a nexus between Murari Sah,the MD, Devanya Resorts Pvt. Ltd. and the informant.

39. On the question of malafide, on behalf of the informant, it is being argued that the court cannot, in these proceedings, go beyond the material collected during investigation.

40. Undoubtedly, the Court cannot go beyond the material collected during investigation or the admitted documents or the attending circumstances, which may be inferred from the documents or material placed on record. Malafide is not something, which could be seen. It is not an action. It is a mental state. It can just be inferred to by the action of a party.

41. This Court has discussed the concept and law on malafide in Criminal Misc. Application No.1136 of 2013, Bhupal Singh and others Vs. State of Uttarakhand and another, and in Paras 21 to 29 and 31 observed as hereunder:-

"21. The literal meaning of mala-fide is "bad faith" or "intention to deceit". In the case of State of Bihar and Another Vs. P.P. Sharma, IAS and Another, 1992 SCC (Cri) 192, the Hon'ble Supreme Court held that "the question of mala-fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for an unauthorized purpose" (Para 22). It was further observed that "there is no material to show that the dominant object of registering the case was the character assassination of the respondents or to harass and humiliate them. This Court in State of Bihar v. J.A.C. Saldhana1 has held that when the information is lodged at the police station and an offence is registered, the mala-fides of the informant would be of secondary importance. It is the material collected during the investigation which decides the fate of the accused person".

22. The concept of mala-fide has further been discussed by the Hon'ble Supreme Court and it was held that;

1. (1980) 1 SCC 554 : 1980 SCC (Cri) 272 : (1980) 2 SCR 16 36 "49. The focal point from the above background is whether the charge-sheets are vitiated by the alleged mala fides on the part of either of the complainant R.K. Singh or the Investigating Officer G.N.Sharma. In Judicial Review of Administrative Action by S.A. de Smith, (3rd edn. at p.2932 stated that:

"The concept of bad faith ... in relation to the exercise of statutory powers ... comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred. His intention may be to promote another public interest or private interest. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise .... The administrative discretion means power of being administratively discreet. It implies authority to do an act or to decide a matter a discretion.............................................. ............................."

"50. Mala fides means want of good faith, person bias, grudge, oblique or improper motive or ulterior purpose.........................................."

2. Ed.: 4th Edn., p. 335 37 "51. The action taken must, therefore, be proved to have been made mala fide for such considerations Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand."

23. The Hon'ble Supreme in the case of Zandu Pharmaceutical Works Ltd. and Other Vs. Mohd. Sharaful Haque and Another, (2005) 1 SCC 122 held that:-

"..............If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint 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 38 fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar 3 , State of Bihar v. P. P. Sharma4 , Rupan Deol Bajaj v. Kanwar Pal Singh Gill5 , State of Kerala v. O. C. Kuttan6 , State of U. P. v. O. P. Sharma7, Rashmi 12 Kumar v. Mahesh Kumar Bhada8 , Satvinder Kaur v. State (Govt. of NCT of Delhi) 9 and Rajesh Bajaj v. State NCT of Delhi10.)" (Para 11)

24. In the case of State of Karnataka Vs. M. Devendrappa and Another, (2002) 3 SCC 89, the Hon'ble Court has further interpreted the scope of Section 482 of the Code and held as hereunder:-

"6. .......................................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 "quande lex aliquid aliqui concedit, concedere videtur in sine que 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 3 1990 Supp SCC 686 : 1991 SCC (Cri) 142 4 1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260 5 (1995) 6 SCC 194 : 1995 SCC (Cri) 1059 6 (1999) 2 SCC 651 : 1999 SCC (Cri) 304 : AIR 1999 SC 1044 7 (1996) 7 SCC 705 : 1996 SCC (Cri) 497 8 (1997) 2 SCC 397 : 1997 SCC (Cri) 415 9 (1999) 8 SCC 728 : 1999 SCC (Cri) 1503 : AIR 1999 SC 3596 10 (1999) 3 SCC 259 : 1999 SCC (Cri) 401 39 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 abuse. It would be an abuse of process of 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 initiation/continuance of it amounts to abuse of process of Court or quashing of these proceedings would otherwise serve the ends of justice..................................................."

(Emphasis supplied)

25. In the case of M. Devendrappa (supra), the Hon'ble Court, inter-alia, held that "Judicial process 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 circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant as unleash vendetta to harass any person needlessly." (Para 8)

26. In the case of Chandrapal Singh and Others Vs. Maharaj Singh and Another, (1982) 1 SCC 466, Hon'ble Court, inter-alia, observed that "The learned Counsel for the respondent told us that a tendency to perjure is very much on the increase and unless by firm action courts do not put their foot down heavily 40 upon such persons the whole judicial process would come to ridicule. We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court." (Para 14)

27. In the case of State of Karnatka Vs. Muniswamy and Others, (1977) 2 SCC 699, Hon'ble Supreme Court held as hereunder:-

"7. .......................The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the, ends of mere law though justice has got to be. administered according to laws made by the, legislature. The compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."

(Emphasis supplied)

28. In the case of State of Punjab v. V.K. Khanna AIR 2001 343, Hon'ble Supreme Court 41 had occasion to interpret the concept of mala-fide. The Court held as hereunder:-

".................The expression 'mala fide' has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide - actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is inaccompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act." (Para 25)

"29. In the case of Pepsi Food Ltd. and Another Vs. Special Judicial Magistrate and Others, (1998) 5 SCC 749, Hon'ble Supreme Court observed that:-

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the 42 accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

"31. In the case of Vineet Kumar and others (2017) 13 SCC 369. There was financial transaction between the parties and a complaint under Section 138 of The Negotiable Instruments Act, 1882 (for short "the NI Act") was pending. During this period, the other party lodged a criminal case for rape, which ended in submission of final report, but on protest petition, the accused were summoned. In that case also, arguments were advanced that the criminal proceedings for rape was mala-fide and falsely initiated to save the complainant and his family members for the offence under Section 38 of the NI Act. The proceedings were quashed in that case. The Court observed in para 41 as hereunder:-

"41. .....................In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryan vs. Bhajan Lal11 . Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation of harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will 43 not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C to quash the proceeding under Category 7 as enumerated in State of Haryana vs. Bhajan Lal, which is to the following effect:

"(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."

Above Category 7 is clearly attracted in the facts of the present case. Although the High Court has noted the judgment of the State of Haryana vs. Bhajan Lal10, but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the I.O. We, thus, are fully satisfied that the present is a fit case where High Court ought to have exercised its jurisdiction under Section 482 Cr.P.C and quashed the criminal proceedings."

42. Instant is a case, which allegedly originates from property dispute. Apparently, based on the PIL and the Civil Appeal before the Hon'ble Supreme Court, it can be said that it is the petitioner no.1, who is representing a Birendra Singh against the builder. The issue is use of forest for non-forest activities. In the Civil Appeal No.8560 of 2018, the Hon'ble Supreme Court, on 44 11.02.2020 quoted a paragraph from the Commissioner Report. (It is the case of the petitioners that the builder is a party in that appeal and the petitioner no.1 represented the appellant) "Almost one fourth of the area of the Estate has forest vegetation, mainly of Oak and Chir Pine. It has the character and appearance of a forest like area. The crown density being in the range 40% and more in most part, and consequently the area definitely qualifies to be a forest in terms of dictionary meaning of the term "Forest". However, its categorization as "Deemed Forest" for purpose of FC Act may be decided by the Hon'ble Tribunal inter alia in the light of the forest vegetation present in the area as described earlier in this report, the draft criteria developed by the State and the various judgments of the Hon'ble Supreme Court including the judgements dated 12-12-1996 in WP(Civil) No.202 of 1995-TN Godavarman Vs. UOI & Ors, the Lafarge Umiam Mining Pvt Ltd vs UOI ((2011 7, SCC 338) and Anand Arya & Anr. Vs. UOI & Ors. In IA No. 2609-2610 of 2009 in WP(Civil) No.202 of 1995. In the interim, the area with forest like vegetation be surveyed and demarcated jointly by the Revenue and Forest Departments and no non-forest activity be permitted in that area till survey is done and area demarcated on the ground."

43. And then, the Court observed that this area is 8.5 hectares. In the PIL also, this Court, subsequent to the order dated 11.02.2020, passed by the Hon'ble Supreme Court in the civil appeal directed for 45 demarcation. An undertaking was also taken on record by the Court on that date that "no trees will be cut without permission from the Competent Authority". This order was passed in the PIL on 23.03.2020. There is a dispute with regard to property. Parties had earlier settled the dispute. It is the respondent no.2, who was to demarcate the property. Admittedly, he did not do so.

44. The above factors taken together make this Court to conclude that, in fact, the respondent no.2 initiated the proceedings with malafide. The entire proceedings are vitiated by malafide. Accordingly, it deserves to be quashed.

45. The petition is allowed. The impugned chargesheet, cognizance order and entire proceedings of the case are quashed.

(Ravindra Maithani, J.) 22.08.2022 Ravi Bisht

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