Jharkhand High Court
Nazir Sheikh vs The State Of Jharkhand on 2 May, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr.) No. 304 of 2014
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Nazir Sheikh, s/o Hezrab Sheikh, R/o Vill.Gaurai Tola, P.O. Piyarpur, P.S. Radhanagar, District- Sahibganj, Jharkhand .... Petitioner
-- Versus --
1.The State of Jharkhand
2.The Secretary, Department of Home, Govt of Jharkhand, Ranchi
3.Director General of Police, Govt. of Jharkhand, Dhurwa, Ranchi
4.Awadh Bihari Ram
5.Deputy Commissioner, Sahibganj
6.Amrendra Kumar
7.Ramkeval Mistry
8.Zarina Bibi
9.Narayan Raj
10.Nazir Sheikh .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Gautam Kumar Singh, Advocate
For the State :- Mr. Binit Chandra, Advocate
Mr. Indrajit Sinha, Amicus Curie
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10/02.05.2023 This petition has been filed for direction upon the police
authorities to investigate Rajmahal (Radhanagar) P.S.Case No.367 of 2013, corresponding to G.R. No.647 of 2013 properly, pending in the court of learned Judicial Magistrate, 1st Class, Rajmahal.
2. During pendency of this petition, it was informed to the coordinate Bench that the complainant has not appeared to press the protest petition and the learned Court has referred the matter to the Lok Adalat wherein the case has been disposed of. In view of that, the Court passed the following order on 03.03.2021:
"In this writ petition, the petitioner has prayed for proper investigation of Rajmahal (Radhanagar) P.S. Case No. 367 of 2013 (G.R. No. 647 of 2013).
Counsel for the petitioner submits that final report was submitted exonerating the accused. Thereafter, the petitioner filed a protest petition. As the petitioner could not appear to press the protest petition, surprisingly the protest petition was referred to Lok Adalat and thereafter the matter has been disposed of on 08.05.2016 by the Lok Adalat. The petitioner is aggrieved by the entire procedure adopted.
This Court fails to understand that when the petitioner, who is the informant, could not appear to press the protest petition, why the same was referred to Lok Adalat without consent 2 of the petitioner.
To verify this fact, let the entire record of Rajmahal (Radhanagar) P.S. Case No. 367 of 2013 (G.R. No. 647 of 2013) along with reference order and the order of Lok Adalat and also the connected file of Lok Adalat be placed before this Court on 17.3.2021, when this Court will hear the matter physically. On that day, it will be decided as to whether the final form can be accepted or protest petition can be disposed of by the Lok Adalat and whether the Magistrate has jurisdiction to refer the matter to Lok Adalat in absence of any one of the parties.
Mr. Indrajit Sinha, learned counsel, who is present, be appointed as Amicus Curiae in this case to assist this Court.
Office is directed to hand over the entire pleadings as well as reference order and the final order passed by the Lok Adalat to the learned counsel, Mr. Indrajit Sinha, so that he can assist this Court properly on 17.3.2021."
3. In view of the above, Mr. Indrajit Sinha, the learned Amicus Curie submits that in the Lok Adalat the matter can be referred on the basis of the settlement or compromise only and that too in compoundable cases. He submits that if the complainant was not appearing to press the protest petition, the Court was required to pass order and the same cannot be the subject matter of Lok Adalat and in the present case the protest petition was based on sections 467 and 468 of the I.P.C which was not compoundable. He also refers to the judgment of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. Ajay Sinha, (2008) 7 SCC 454. Paragraph no.27 of the said judgment is quoted below:
"27. Sub-section (1) of Section 22-C speaks of settlement of disputes. The authority has to take recourse to conciliation mechanism. One of the essential ingredients of the conciliation proceeding is that nobody shall be forced to take part therein. It has to be voluntary in nature. The proceedings are akin to one of the recognised ADR mechanism which is made of Medola. It may be treated on a par with conciliation and arbitration. In such a case the parties agree for settlement of dispute by negotiation, conciliation or mediation. The proceedings adopted are not binding ones, whereas the arbitration is a binding procedure. Even in relation to arbitration, an award can be the subject-matter of challenge. The provisions of the Arbitration and Conciliation Act, 1996 shall apply thereto. The jurisdiction in terms of Section 34 of the Arbitration and Conciliation Act, 1996 is wide. The court in 3 exercise of the said jurisdiction may not enter into the merit of the case but would be entitled to consider as to whether the arbitrator was guilty of misconduct. If he is found to be biased, his award would be set aside. The scope of voluntary settlement through the mechanism of conciliation is also limited. If the parties in such a case can agree to come to settlement in relation to the principal issues, no exception can be taken thereto as the parties have a right of self-determination of the forum, which shall help them to resolve the conflict, but when it comes to some formal differences between the parties, they may leave the matter to the jurisdiction of the conciliator. The conciliator only at the final stage of the proceedings would adopt the role of an arbitrator."
4. The learned counsel for the respondent State submits that in absence of consent the matter was not required to be referred to Lok Adalat.
5. In view of the above facts and submissions of the learned counsel for the parties the Court has gone through the materials on record and the evidence including the L.C.R which has been received and finds that by order dated 28.5.2016 the Lok Adalat has accepted the final form and disposed of the case. The said order has been signed by Member of Lok Adalat. The entire order sheets do not reflect how the matter has been referred to the Lok Adalat. Further it is well settled that in view of provision of Legal Services Authorities Act, if the case is referred to the Lok Adalat and both the sides settled the dispute that cannot be challenged in the higher Court and even under Article 226 of the Constitution of India. However, if any illegality is made therein in appropriate cases, the High Court can exercise its power under Article 226 of the Constitution of India. If the complainant was not appearing to press that protest petition, the Court was required to pass appropriate order on the judicial side only and not on the basis of provisions made in Legal Services Authorities Act. How the matters are required to be decided has been discussed by the Hon'ble Supreme Court, particularly, considering section 22(C) in paragraph no.27 of the judgment relied by the learned Amicus Curie United India Insurance Co. Ltd. v. Ajay Sinha 4 (supra) and the non-compoundable cases cannot be subject matter in the Lok Adalat. In view of section 22(C) proviso, which is quoted below:
"22C. Cognizance of cases by Permanent Lok Adalat.--
(1) Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute: Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law: Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees:
Provided also that the Central Government, may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority.
(2) After an application is made under sub-section (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any court in the same dispute.
(3) Where an application is made to a Permanent Lok Adalat under sub-section (1), it--
(a) shall direct each party to the application to file before it a written statement, stating therein the facts and nature of dispute under the application points or issues in such dispute and grounds relied in support of, or in opposition to, such points or issues, as the case may be, and such party may supplement such statement with any document and other evidence which such party deems appropriate in proof of such facts and grounds and shall send a copy of such statement together with a copy of such document and other evidence, if any, to each of the parties to the application;
(b) may require any party to the application to file additional statement before it at any stage of the conciliation proceedings;
(c) shall communicate any document or statement received by it from any party to the application to the other party, to enable such other party to present reply thereto.
(4) When statement, additional statement and reply, if any, have been filed under sub-section (3), to the satisfaction of the Permanent Lok Adalat, it shall conduct conciliation proceedings between the parties to the application in such manner as it thinks appropriate taking into account the circumstances of the dispute.
(5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under sub-section (4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner.
(6) It shall be the duty of every party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it.
(7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may 5 formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned.
(8) Where the parties fail to reach at an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute."
6. In above view of the matter, order passed by the Lok Adalat dated 28.05.2016 is set-aside.
7. The protest petition in connection with Rajmahal (Radhanagar) P.S.Case No.367 of 2013, corresponding to G.R. No.647 of 2013, pending in the court of learned Judicial Magistrate, 1 st Class, Rajmahal is restored to its original file.
8. The learned court will proceed in accordance with law from the stage of final form.
9. W.P.(Cr.) No.304 of 2014 is disposed of.
10. Let the L.C.R. be sent back to the learned concerned court forthwith.
11. Pending petition if any also stands disposed of accordingly.
12. It is made clear that on merit this Court has not said anything and the learned court will decide the said protest petition in accordance with law.
( Sanjay Kumar Dwivedi, J.) SI/;