Jharkhand High Court
Swararaj Thackeray @ Raj Thackeray vs State Of Jharkhand & Anr on 22 December, 2008
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IN THE HIGH COURT OF JHARKHAND, RANCHI.
W.P. (Cr.) No. 264 of 2008
Swararaj Thackeray @ Raj Thackeray -- -- -- -- --Petitioner
Versus
1. The State of Jharkhand.
2. Hamid Raza Khan @ Hamid Raza -- -- -- -- -- -Respondents
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CORAM : THE HON'BLE MR.JUSTICE D.K. SINHA
For the Petitioner(s) : M/s. Y.V. Giri, Sr. Advocate,
Pandey Neeraj Rai,
Anupam Lal Das, Sayaji Nangre,
Rohit Ranjan Sinha, Advocates
For the State : M/s. P.K. Prasad, Advocate General,
R.R. Mishra, G.P.-II
For Respondent No.2 : Mr. Amit Kr. Das, Advocate
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Reserved on: 28-11-2008 Pronounced on: 22-12-2008
D.K. Sinha, J. Petitioner has invoked the extra-ordinary writ jurisdiction
of this Court under Articles 226 and 227 of the Constitution of India for the
following reliefs:
(a) Issue an appropriate writ(s), order(s) or direction(s) in
the nature of certiorari setting aside the impugned order
dated 30.9.2008 passed in Complaint Case No.C/1-354/08
by Shri A.K. Tiwary, learned Judicial Magistrate,
Jamshedpur.
(b) Issue an appropriate writ(s), order(s) or directions(s)
declaring the proceedings pending before the learned
Judicial Magistrate, Jamshedpur, post cognizance, as
being without jurisdiction.
(c) Issue an appropriate writ(s), order(s) or directions(s)
directing the learned Trial Court at Jamshedpur to follow
the mandate of Section 210 of Cr.P.C. and to call for a
status report from the Vikroli Police Station, Mumbai,
Maharashtra in connection with Cr. No.29 of 2008 and in
the mean time stay the further proceedings in compliant
case No.C/1-354/08 pending in the Court of Shri A.K.
Tiwary, Judicial Magistrate, Jamshedpur to the
appropriate Court at Mumbai, Maharashtra for
amalgamation/tagging the instant compliant case with the
Police Case.
And
(d) During the pendency of this writ petition, the
proceedings in Compliant Case No.C/1-354/08 pending in
the Court of Shri A.K. Tiwary, Judicial Magistrate,
Jamshedpur be stayed;
And
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(e) During the pendency of this writ petition, the execution
of non bailable warrant in terms of order dated 30th
September, 2008 be stayed;
And
(f) Pass such other writ(s), order(s), directions(s) as Your
Lordships may deem fit and proper in the facts and
circumstances of the case."
2. The brief fact of the case as stands narrated in the
complaint filed by respondent No.2 Hamid Raza Khan before the Chief
Judicial Magistrate, Jamshedpur in Complaint Case No.C/1-354/08 was
that the accused writ petitioner herein was the President of a political party
named as Maharashtra Navnirman Sena, who in a public meeting on
31.1.2008passed remarks against the Hindus in relation to a festival known as "Chhath" causing hurt to the religious feelings of Hindus and thereby outraged the feelings of the people of Bihar, Uttar Pradesh and Jharkhand within the territory of India. According to the complainant- respondent No.2 Hamid Raza Khan, celebration of "Chhath" festival has been cultural and religious belief and that the petitioner by his statements warned the North Indians, especially the Biharis that they would not be allowed to celebrate the holy festival "Chhath" in Maharashtra which created disharmony on account of his aggravated parochial feelings. Such statement was alleged to have been delivered with an intention which was likely to cause fear and alarm to the people of North-Eastern region by inducing his party men to commit offence against public tranquility and waging war against the Government of India by creating disturbance in the country. Statement of the complainant was recorded on 6.3.2008 on solemn affirmation whereby though he corroborated his earlier allegation against the petitioner as made in the complaint petition but, according to learned counsel, the complainant made substantial improvement/exaggeration beyond what was stated in the complaint to the extent that the petitioner had given call in the said meeting that the people of outside living in Maharashtra had no right to stay there and that the people from Bihar, Jharkhand and Uttar Pradesh should be driven out.
3. To substantiate the allegation as levelled in the complaint, respondent-complainant produced and examined as many as three witnesses in course of enquiry of the allegation under Section 202 of the Code of Criminal Procedure, 1973.
4. Learned counsel for the petitioner assailed the statement of all the three witnesses produced on behalf of the complainant that they also made development in their statements during enquiry beyond what was alleged by the complainant.
5. The learned counsel for the petitioner pointed out that the witness Sanjay Prasad .narrated the incidence of February, 2008 and 3 alleged the involvement of foreign forces behind the action of the petitioner on whose instance violence was caused upon North Indians and that the witness was aggrieved as because he was a North Indian and was shocked from the statement of the petitioner. Another witness Rajhans Tiwary, though corroborated the statement made by the complainant- respondent but he was aggrieved as the petitioner had made fun of Bhojpuri language and he derived information on viewing Television as also from perusal of the newspaper. Statement of Niranjan Prasad was more near to the statement of Rajhans Tiwary, who also made substantial development from the original script of the complaint petition. He deposed during enquiry that the statement as made by the petitioner provoked Maharashtrian to commit atrocities upon the North Indians which hurt the feelings of the people residing in Bihar and Jharkhand. The Judicial Magistrate upon his erroneous satisfaction on such statement of witnesses recorded in course of enquiry, took cognizance of the offence under Section 153/295A/298 of the Indian Penal Code and thereby directed summons to be issued for appearance of the petitioner.
6. It would be relevant to mention that the petitioner had earlier moved before this Court by invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer for quashment of the order taking cognizance dated 1.4.2008 as well as the entire criminal proceeding against the petitioner. By a detailed order dated 19.9.2008 this Court in Cr.M.P. No.696 of 2008 though had quashed the cognizance of a particular offence under Section 295A of the Indian Penal Code against the petitioner but the other offences alleged against the petitioner under Sections 153 and 298 of the Indian Penal Code in which cognizance was taken remained intact nevertheless, with the following observation:-
"However, if the petitioner, after his appearance in the Court below, raises such a question of territorial jurisdiction, the Court below may deal with such question in accordance with law."
Admittedly, petitioner did not appear in the Court below and therefore, such issue could not be dealt with by the Court assigned to dispose of the issue.
7. Mr. Y.V. Giri, the learned senior counsel submitted that the petitioner preferred three different applications before the learned Judicial Magistrate at Jamshedpur, first under Section 210, second under Section 177 and third under Section 317 of the Code of Criminal Procedure respectively with the distinct reliefs. It was submitted before the learned Judicial Magistrate with reference to the petition filed under Section 210 of the Code of Criminal Procedure that a police case vide F.I.R. No.29 of 4 2008 for the alleged offence under Sections 117/153/153A/153B of the Indian Penal Code was instituted at Vikroli Police Station, Mumbai, Maharashtra against the petitioner in which investigation was going on for the same and similar set of allegation and in view of the pendency of such police case for the same set of facts and offence, private complaint filed by the complainant-respondent No.2 be stayed and upon being satisfied with the report submitted by the concerned police station on demand, the private complaint may be transferred to the concerned Court of Mumbai to be tried with the said police case in accordance with law as laid down under Section 210 of the Code of Criminal Procedure.
Mr. Giri, learned senior counsel, advancing his argument submitted with reference to the application under Section 210 of the Code and exigency of incorporation of the said Section in the new Code, 1973. He pointed out that the Joint Select Committee expressed need of enactment of the Section on the following, "It has been brought to the notice of the committee that sometimes when a serious case is under investigation by the police, some of the persons concerned file a complaint and quickly get an order of acquittal either by collusion or otherwise. Thereupon, the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report is received in the case, the Magistrate should try together the compliant case and the case arising out of the police report. But if no such report is received, the Magistrate would be free to dispose of the complaint case."
The intention of the Select Committee was reflected for the simple reason that the police investigation was given preference over the private complaint and if the private complaint was pending, it has to be stayed and proceeded together with the police case. It was only with a view to avoid multiplicity of proceedings, conflicting judgments, likely to prejudice the accused in disclosure of his defence first point in time and to safeguard the interest of the accused being vexed twice under parallel proceeding in the aforesaid premises the provisions of Section 210 of the Code of Criminal Procedure was brought about.
Mr. Giri submitted that in almost similar situation, the learned Single Judge of the Delhi High Court in State versus Har Narain and others, reported in 1976 CRI. L. J. 562 observed, "Now, one of the ingredients of sub-section (1) is that the offence enquired into or tried by the Magistrate in the complaint case should also be under police investigation. The word 'offence' has been defined in Section 2(h) of the Code as "any act or omission made 5 punishable by any law for the time being in force.........." In other words, it is the act or omission which has to be common. As long as the facts under investigation by the police include the facts mentioned in the complaint case then it will make no difference if the police come to the conclusion that offences not mentioned in the complaint have been committed by the accused. In the instant case a bare reading of the police report and the complaint shows that the facts complained of are the same. It is true that the period covered by the police report is longer than the period covered by the complaint case. But that is because after the matter had been reported to the police the assessee filed further income-tax returns for the succeeding periods and the police found that similar offences had been committed by the respondents in the succeeding periods."
Learned senior counsel urged that if once the criteria as laid down under Section 210(1) of the Code are satisfied, duty is cast upon the Magistrate under sub-section(2) to try the two cases together as if they were instituted on a police report.
Mr. P.K. Prasad, learned Advocate General on behalf of the State made a contrary submission by attracting the attention that Vikroli P.S. Case No.29 of 2008 was instituted on 10.2.2008 in relation to the offence/occurrence which took place between 31.1.2008 to 3.2.2008 for the alleged offence under Sections 117,153(a) and 153(b) of the Indian Penal Code on different set of allegations against the petitioner Swararaj Thackeray @ Raj Thackeray, the President of a political party named as Maharashtra Navnirman Sena, who made such statements in his public speech which were provocative in nature and designed in the wake to create hatred amongst the people of different region. Written statement of the informant in the police case dealt with different statements at different stages at different places targeting the leaders of the various political parties by naming them and thereby created enmity amongst the Maharashtrians and other linguistic group whereas the Complaint Case No.354 of 2008 presented before the Chief Judicial Magistrate, Jamshedpur by the complainant-respondent indicated the occurrence dated 31.1.2008 and onwards till filing of the complaint on 2.2.2008 which was in relation to prima facie different set of offences punishable under Sections 153 and 298 of the Indian Penal Code. Gist of the allegation as leveled in the complaint case was that the accused-petitioner passed remarks on 31.1.2008 in a public/press meeting against the Hindu Community in relation to celebration of "Chhath" thereby causing hurt to the religious feelings of Hindus.
On careful comparison of the allegations distinctly made in the police case as well as in complaint case, I do not find consistency in facts related to allegations against the petitioner. On the other hand, it is 6 noticed that the set of allegation as made in Complaint Case No.C/1- 354/08 pending before the Judicial Magistrate, Jamshedpur is quite different to the subject matter or allegations as made against the petitioner in Vikroli Police Case No.29 of 2008 for the alleged occurrence which took place between 31.1.2008 to 3.2.2008. I therefore, observe that since both the complaint and police cases are based upon distinct facts and sets of allegation, do not come within the mischief of Section 210 of the Code so as to be tagged together and tried within the jurisdiction of Mumbai's Court as per jurisdiction of Vikroli police station.
8. In another petition filed under Section 177 of the Code of Criminal Procedure, it was submitted that the complaint of the complainant-respondent No.2 was in respect of the speech alleged to be delivered by the petitioner in Mumbai within the State of Maharashtra, the solitary act which led to the filing of complaint by the complainant. Relying upon the decisions of the Apex Court as also of this Court in Ajay Kumar Jain and others versus State of Jharkhand and another, reported in 2007(2) JLJR 282, the senior counsel Mr. Giri submitted that the territorial jurisdiction to proceed in the instant case, under the facts and circumstances, rest only with the Court at Mumbai, in the State of Maharashtra and that the Court of Judicial Magistrate at Jamshedpur within the State of Jharkhand was barred by territorial jurisdiction under Section 177 of the Code of Criminal Procedure.
Section 177 deals with ordinary place of inquiry and trial which speaks:-
"Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed."
In Trisuns Chemical Industry versus Rajesh Agarwal, reported in (1999)8 SCC 686, Hon'ble Supreme Court held that it was an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. The provisions of Sections 177 and 179 of the Code do not trammel the powers of any Court to take cognizance of the offence. The Apex Court observed in the said decision that the jurisdictional aspect of the Court becomes relevant only when a question of enquiry or trial arises. It is therefore, a fallacious thinking, according to the Apex Court, that only a Magistrate having jurisdiction to try the case has power to take cognizance of the offence. If he is a Magistrate of the First Class, empowered to take cognizance of the offence, is not impaired by territorial restriction. Only after taking cognizance, the Magistrate may have to decide as to the Court which has jurisdiction to enquire into or try the offence and that stage has not arrived in the instant case. The petitioner has raised the point of maintainability on 7 the issue of jurisdiction but the stage of trial or enquiry has not come as the petitioner abstains from the Court of Magistrate and only after appearance he may agitate the jurisdictional issues.
Learned Advocate General submitted by attracting attention that the petitioner had earlier moved this Court by invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure in Cr.M.P. No.696 of 2008 for quashment of the order taking cognizance dated 1.4.2008 and also the entire criminal proceeding against him for the alleged offence under Sections 153, 295A and 298 of the Indian Penal Code. This Court after due consideration observed by order dated 19.9.2008 that the order of the Magistrate, taking cognizance of the offence cannot be impaired by territorial jurisdiction and that after taking cognizance he may have to decide the question of territorial jurisdiction. In such circumstances, the criminal proceeding against the petitioner cannot be quashed on the ground of territorial jurisdiction and liberty was accorded to the petitioner to raise the question of territorial jurisdiction (under Section 177 of the Code of Criminal Procedure) after his appearance before the Magistrate and such question would be dealt with in accordance with law.
This issue was earlier decided by this Court and in spite of the clear observation of this Court aforesaid, the petitioner did not choose to appear in the Court, hence another petition, raising the same and similar issue under Section 177 of the Code of Criminal Procedure is not maintainable.
9. Petitioner preferred a separate application under Section 317 of the Code of Criminal Procedure before the Judicial Magistrate, Jamshedpur for dispensation from his personal appearance before the Court as his presence was not necessary as the offence alleged in the complaint being summons triable and that personal appearance of the petitioner could be dispensed with. His such petition was rejected in limine on the ground that the petition under Section 205 of the Code of Criminal Procedure filed earlier by the petitioner was already rejected and that the provisions laid down in Section 317 of the Code was operational only after appearance of the accused before the Court in seisin. It was further observed that since the petitioner did not appear, he cannot be represented under Section 317 of the Code of Criminal Procedure, accordingly, the petition was rejected.
10. Learned senior counsel assailed the order by submitting that the observation of the learned Magistrate was misconstrued and contrary to the provisions of law. In a summons trial case, an accused may be represented through his lawyer and substance of accusation as required under Section 251 of the Code of Criminal Procedure may be 8 explained through the counsel even in absence of any order by dispensing the appearance of the accused in the Court under Section 205 of the Code.
11. Section 317 of the Code deals with provision for inquiries and trial being held in the absence of accused in certain cases, which speaks:-
"(1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.
(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately."
12. The provisions of law as laid down under Section 317 of the Code is very clear that the satisfaction of the Magistrate is subjective and discretionary in nature. The Court of Magistrate had earlier directed the petitioner to enter appearance buttressed by the observation of this Court on the petition of the petitioner under Section 482 of the Code calling upon the petitioner to agitate the matter of jurisdiction or otherwise, after entering appearance in the Court of Magistrate at Jamshedpur. I do not subscribe to the view taken by the learned Judicial Magistrate who observed that as the petition earlier sought to be filed by the petitioner under Section 205 of the Code for dispensation of his personal appearance was rejected, his petition under Section 317 of the Code was not maintainable. The law as laid down under Section 317 of the Code attributes "at any stage of an inquiry or trial" and that stage of an inquiry or trial has not come in the instant case as discussed hereinabove. Dispensation/exemption from his personal appearance by the order is to be justified by the Magistrate to his subjective satisfaction and by recording reasons that the personal attendance of the accused was not necessary in the interest of justice during enquiry or trial. I therefore, find without going into the details, that the petition filed under Section 317 of the Code of Criminal Procedure by the petitioner before the stage of an inquiry or trial was not maintainable and the learned Magistrate did not err in rejecting the petition of the petitioner filed under Section 317 of the Code of Criminal Procedure, 1973.
13. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the parties and discussions on the points 9 of law, I find that the petitioner failed to make out sufficient cause so as to call for interference in the impugned order dated 30.9.2008 passed in Complaint Case No.C/1-354/08 by Shri A.K. Tiwari, Judicial Magistrate, 1st Class, Jamshedpur. There being no merit, this writ petition is dismissed with the direction to the petitioner to enter appearance in the Court of Magistrate at Jamshedpur, keeping in view of intervening Christmas holidays, within twenty days.
(D.K. Sinha, J.) S.B./A.F.R.