Jharkhand High Court
Ayush Aditya vs The State Of Jharkhand on 21 June, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1604 of 2019
Ayush Aditya, aged about 33 years, son of late Prakash Kishore Prasad,
resident of Nand Niwas, 132/C, Vidyalaya Marg, In front of Maheshwari Girls
School, Ashok Nagar, P.O. Ashok Nagar, P.S. Argora, District-Ranchi
...... Petitioner
Versus
1.The State of Jharkhand
2. Ram Bihari Prasad Singh, son of late Guru Ram, resident of Qr. No. B/4,
Government Residential Colony, Opposite Nagar Nigam Office, Chas, P.O. and
P.S. Chas, District-Bokaro. ...... Opp. Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioner :Mr. A.K. Kashyap, Sr. Advocate
Mr. P.S. Dayal, Advocate
For the State : Mr. Suraj Verma, Spl. P.P.
For the O.P. No. 2 : In person.
............
06/Dated: 21/06/2022 Heard A.K. Kashyap, learned senior counsel assisted by Mr. P.S. Dayal, learned counsel for the petitioner, Mr. Suraj Verma, learned counsel for the State and O.P. No. 2 appearing in person.
2. The present petition has been filed for quashing of First Information Report being SC/ST P.S. Case No. 15/2019 dated 26.04.2019, registered under sections 182, 211/403/418/420/468/506/120B of the Indian Penal Code and under section 3(1) (r) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 2015, pending in the Court of learned Additional Judicial Commissioner-XII, Ranchi.
3. Informant namely, Ram Bihari Prasad lodged the F.I.R. alleging therein that he is a member of Scheduled Caste community by caste-Dusadh and resides at Qr. No. B/4, Government Residential Colony, Opposite Nagar Nigam Office, Chas, P.O. and P.S.-Chas, District-Bokaro working on the post of X-Ray Technician in Sub Divisional, Chas, Bokaro under Health Department, Government of Jharkhand, Ranchi.
It is further alleged that in the year, 2008 he had appointed Ayush Aditya as his Advocate in his case regarding payment of salary, which was 2 filed in this Hon'ble High Court being W.P.(S) No. 5269 of 2008 and for the same he (the petitioner) had taken Rs. 35,000/- towards his professional fees. He after connived with unknown opposite party of his case cheated the informant and did not appear on eight dates fixed for hearing in the Hon'ble High Court from 2008 to June, 2016 and violated the provisions of the Advocates Act. The informant being helpless had appointed another Advocate and demanded back Rs. 20,000/- from Ayush Aditya (petitioner herein) which was taken as professional fees for argument of the case, accepting the filing expenses for the writ application upon which the petitioner became furious and gave threatening by using insulting word taking his caste name to send him jail and by saying that no money will be returned.
It is further alleged that the petitioner in connivance with his Junior Shashank Shekhar, Advocate and Deepak Kumar Verma (Munshi) hatched a criminal conspiracy and got an F.I.R. filed against him in Argora Police Statin through Deepak Kumar Verma, the Munshi (Advocate's Clerk) alleging that the occurrence of 01.01.2017 at about 5.30 P.M. occurred at the residential office of the petitioner at 132/C, Vidyalaya Marg, in front of Maheshwari Girls School, Ashok Nagar, P.O. Ashok Nagar, P.S. Argora, District Ranchi on the basis of which the officer-in-charge, Argora P.S. had registered a case being Argora P.S. Case No. 7/2017 against Ram Bihari Prasad Singh (informant herein) under sections 341/323/379/34 of the Indian Penal Code and under section 27 of the Arms Act and caused pain and loss to him which was disposed of as dismissed in the National Lok Adalat on 08.12.2018 which case was pending being G.R. No. 57/2017, Argora P.S. Case No. 07/2017 in the court of the learned S.D.J.M., Ranchi till 08.12.2018.
It is further alleged that the petitioner with his junior namely, Shashank Shekhar, Advocate and Deepak Kumar Verma, the Advocates' clerk hatched a criminal conspiracy and got registered a false case through the said 3 Deepak Kumar Verma alleging that occurrence took place on 01.01.2017 at about 5.30 P.M., in Argora P.S. being Argora P.S. Case No. 07/2017 due to which the informant's service came in problem and he got insulted and defamed in the society which caused effect upon his family and children and he has faced problems in taking bail and also suffered mental agony and shok.
It is further alleged that due to the aforesaid offence committed by the petitioner including Shashank Shekhar (Advocate) and Deepak Kumar Verma (Advocates' Clerk) under section 182, 211/403/418/420/468/506/120B of the Indian Penal Code and under section 3 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, he has been defamed and due to that he has sustained loss of Rs, 25 lacs towards his defamation. On the basis of typed report, SC/ST P.S. Case No. 15/2019, dated 26.04.2019 for the offence under sections 182, 211/403/418/420/468/506/120B of the Indian Penal Code and under section 3 (1) (r) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 2015 was registered.
4. Mr. A.K. Kashyap, learned senior counsel for the petitioner submits that Deepak Kumar Verma who happens to be the clerk of the petitioner has lodged F.I.R. being Argora P.S. Case No. 7/2017 against the O.P. No. 2 in which final form was submitted by the police stating therein lack of evidence. By way of referring supplementary affidavit, Mr. Kashyap, learned senior counsel for the petitioner submits in the said case Deepak Kumar Verma has not received any notice and he has not been able to file protest petition against the final form submitted by the police in connection with Argora P. S. Case No. 07 of 2017 before the learned court below. He further submits that the said final form has been accepted in the Lok Adalat. He further submits that O.P. No. 2 has engaged this petitioner to appear in one of the service matter before this Court numbered as W.P.(S) No.5269 of 2008. He further submits that so far allegation under section 3 (1) (r) of the Scheduled Castes & Scheduled Tribes 4 (Prevention of Atrocities) Act is concerned, the same is not attracted as the entire allegation is vague and the alleged incident occurred in the office of the petitioner and ingredient of public view in the light of section 3 (1) (r) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act is lacking. He further submits though F.I.R. has been registered under various sections of Indian Penal Code but the ingredients of those sections are not made out. He further submits that so far sections 182 and 211 I.P.C. are concerned that is with regard to any wrong done to the court thereafter that can be lodged at the instance of any public servant and thus, these sections 182 and 211 I.P.C. are not attracted. He further submits that so far sections 403/418/420/468/506/120B of the Indian Penal Code are concerned, ingredients of those sections are not disclosed in view of allegation made in the F.I.R. He further elaborated his argument by way of submitting that the O.P. No. 2 has engaged this petitioner in other cases also which has been disclosed in para 9 of the petition. He further submits that in almost all the petitions filed by the petitioner on behalf of O.P. No. 2, O.P. No. 2 has obtained reliefs. He further submits that so far as W.P.(S) No. 5269 of 2008 is concerned that was listed and adjourned for the one and another reason sometime due to paucity of time and some time at the instance of the Government Advocate. He further submits that O.P. No. 2 has earlier filed complaint on 09.05.2017 and nothing has happened and subsequently F.I.R. has been lodged after two years. He further submits that after filing of the said complaint in the year, 2017 the F.I.R. has been lodged after two years against the petitioner. He further submits that the O.P. No. 2 has also filed complaint against petitioner before the Jharkhand State Bar Council and upon the complaint of the O.P. No. 2, Jharkhand State Bar Council after examining the complaint called reply from the petitioner for which petitioner submitted reply on 22.02.2017. Thereafter, the said proceeding was dropped by the Jharkhand State Bar Council. He 5 further submits that after dropping the proceeding on the complaint of the O.P. No. 2 by the Jharkhand State Bar Council, the O.P. No. 2 has lodged the present F.I.R. on 26.04.2019. He has not filed any appeal against the order of Jharkhand State Bar Council. He further submits that though all the cases conducted for the O.P. No. 2, a meagre amount has been charged by the petitioner and now various allegation has been made against the petitioner who is practising lawyer of this Court that the petitioner connived with unknown persons has not appeared in service matter on behalf of O.P. No. 2. He further submits that if such allegations are being encouraged to be entertained, no counsel will remain safe and any litigant in whose favour order is not delivered can implicate any advocate that too in absence of any material. He further submits that entire F.I.R. is malicious in nature and fully covered with judgment in the case of "State of Haryana V. Bhajan Lal reported in 1992 Supp. (1) SCC 335. He further submits that the entire F.I.R. is malicious one and in the complaint made before Jharkhand State Bar Council by the O.P. No. 2 there was no allegation with regard to ingredient of 3 (1) (r) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act.
5. Mr. Suraj Verma, learned counsel for the state submits that he has filed counter-affidavit. In para 8 of the counter-affidavit it has been disclosed that O.P. No. 2 filed complaint dated 06.01.2017 before the State Bar Council of Jharkhand which does not disclose any statement showing that petitioner has used any abusive language regarding his cast or threatened him that he will not return his money or will send him in jail. He has further stated that Investigating Officer has noted contradiction in the complaint which has been filed by the O.P. No. 2 before the State Bar Council of Jharkhand and the averment made in the F.I.R bearing SC/ST P.S. Case No. 15 of 2019. He further submits that in para 10 of the counter-affidavit it has been disclosed that in para 99 of the Case Diary the Investigating Officer has mentioned that no 6 material has been collected in course of investigation against the petitioner and there is no need for further investigation in the present case. On these grounds, learned counsel for the State submits that nothing has come inspite of investigation made by the police.
6. O.P. No. 2 appeared in person and submits that Jharkhand State Bar Council has illegally dropped the proceeding on the complaint made by him. He further submits that Argora P.S. Case No. 07 of 2017 has been falsely lodged against O.P. No. 2 in which informant therein was not appearing. By way of referring to page 51 of the counter-affidavit filed by the O.P. No. 2, he submits that he was being treated in Bokaro and false case has been lodged against him at Ranchi. The O.P. No. 2 appearing in person submits that he has made allegation against the Investigating Officer as he has not conducted the case in right direction. He further submits that in one or two dates the petitioner has not appeared on behalf of O.P. No. 2 in service matter. He further submits that he has obtained information under the Right to Information Act from the Superintendent of Police (Traffic), Ranchi. He submits that the case has been found to be true. On these grounds he submits that there is no illegality in F.I.R.
7. In the light of aforesaid facts and circumstances of the case and in the light of submissions of the learned senior counsel for the petitioner, learned counsel for the State and the O.P. No. 2 appearing in person, the Court has gone through the materials on record. It is an admitted fact that that O.P. No. 2 has filed complaint against the petitioner on 19.05.2017 before the Police and he has also filed complaint before the Jharkhand State Bar Council and the Jharkhand State Bar Council dropped the complaint against the petitioner on 22.02.2017 thereafter the present F.I.R. has been lodged belatedly on 26.04.2019 against the petitioner. When the first complaint was filed in the year, 2017 before the police it was incumbent upon the O.P. No. 2 to pursue 7 that complaint if intention was clear. It is settled law that if a complaint is filed before the police which is not being registered the litigant is having recourse under Cr.P.C. by invoking jurisdiction under section 154, 156 Cr.P.C. or by filing petition before the Superintendent of Police of the concerned district which has not happened in the case in hand and after dropping the proceeding by Jharkhand State Bar Council the O.P. No. 2 has lodged the present F.I.R. which shows malafide intention on behalf of this O.P. No. 2. It has been disclosed in para 9 of the petition that this petitioner has appeared in 3-4 matters in which O.P. No. 2 has got relief and for pending W.P.(S) No. 5269 of 2008 he has made many allegations against the petitioner particularly on the integrity on the ground that he was connived with some unknown persons in service matter of the O.P. No. 2. What for an advocate appearing connived with other party, the Court failed to understand. It has been disclosed that in the said writ petition the O.P. No. 2 has obtained 'No Objection Certificate' from the petitioner on 05.12.2016. After obtaining 'No Objection Certificate' the O.P. No. 2 has started litigation with the petitioner. What is scope of 182/211 I.P.C., it is crystal clear from Section 195 of the Cr.P.C, that sections are attracted if any wrong has been done with the Court. Section 195 Cr.P.C. is required to be followed. Reference may be made to the judgment in the case of " Saloni Arora V. State of (NCT of Delhi) reported in (2017) 3 SCC 286. Paragraph no. 9 of the said judgment are quoted here-in-below-:-
"9. As rightly pointed out by the learned counsel for the parties on the strength of law laid down by this Court in Daulat Ram v. State of Punjab that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio."
8. Offence under section 182 I.P.C. is complete when the complaint is found to be false. On the strength of complaint filed by Deepak Kumar Verma the O.P. No. 2 has tried to bring operation of sections 182/211 I.P.C. which is not attracted in the case in hand.
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9. Section 403 I.P.C. speaks of dishonest misappropriation of property. What was any misappropriation of property by this petitioner is not subject matter of the written complaint of the F.I.R. Section 403 I.P.C. is not attracted.
10. Section 418 I.P.C. is with regard to cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect. The petitioner was already pursuing the matter before the Court for which he was entrusted then how the case of cheating is made out against the practicing advocate is a question mark.
11. Section 420 I.P.C. speaks of cheating and dishonestly inducing delivery of property. What property this petitioner induced to deliver, is not disclosed in the F.I.R. Section 420 I.P.C. is not attracted.
12. Section 468 I.P.C. is with regard to forgery for purpose of cheating. There is no intention of cheating from the very beginning. Section 468 I.P.C. is not attracted.
13. Section 506 I.P.C. is with regard to criminal intimidation. Punishment has been prescribed. The contents of the F.I.R. discloses no intimidation against the petitioner. Section 506 I.P.C. is not attracted.
14. On perusal of section 2(1)(r) of the SC/ST Act it is crystal clear that if the allegations are made in public view then only this section is attracted. In the F.I.R it has been disclosed that the alleged occurrence took place in the office of the petitioner which is not in public view. 'Public view' has been considered by the Hon'ble Supreme Court in the case of "Swarn Singh & Others Vs. State through Standing Counsel and Another" reported in (2008) 8 SCC 435 wherein paragraph no. 28 of the said judgment the Hon'ble Supreme Court has held as under:-
"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 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 9 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."
15. It is well settled that vulnerability of society is required to be considered for proving of the ingredients in the said Act. In view of section 3(i)(r) of the said Act, intentionally insults or intimidates with intent to humiliate in a public view is one of the ingredients which is absent in the case in hand. Reference may be made to the case of " Hitesh Verms Vs. State of Uttrakhand and Another" reported in (2020) 10 SCC 710. Paragraph 13 and 15 of the said judgment are quoted here-in-below:
"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 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 2 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 Caste. 15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet."
16. In view of aforesaid judgments of the Hon'ble Supreme Court and 10 looking into the fact that once section 3(1)(r) of the SC/ST (POA) Act the ingredients are lacking there is no case of Schedule Caste and Schedule Tribe Act is made out against the petitioner.
17. The contention of the O.P. No. 2 that he has been implicated in a false case by one Deepak Kumar Verma, how this petitioner is concerned with the said case, is not disclosed in the First Information Report. It has been disclosed in the counter-affidavit of State that son of the O.P. No. 2 was questioned by the police on telephone and he has supported the case of O.P. No. 2. The contention of the O.P. No. 2 with regard to Jharkhand State Bar Council that the complaint has not been considered in right direction, for that rejection, no cogent reason has been stated in the counter-affidavit filed by the O.P. No. 2. The statutory body provided under Advocates Act, 1961, frivolous allegations against the advocate are also required to be taken care of by the Jharkhand State Bar Council.
18. A lawyer under discharging his professional assignment has a duty to his client, a duty to his opponent, a duty to the court, a duty to the society at large and duty to himself and it needs a high degree of probity and poise to strike a balance and arrive at the place of righteous stand. It is cardinal principle of law that in cases of misconduct or allegations of any guilt against any person involving his indictment or infliction of punishment the evidence adduced should be of such a character and intrinsic value which may not admit any element of a reasonable doubt about alleged misconduct or guilt. Charge of misconduct is a serious matter for a practicing advocate. Therefore the allegation of misconduct has to be proved to the hilt. The evidence adduced should enable a finding being recorded without any element of reasonable doubt. In the present case the Jharkhand State Bar Council has arrived at proper appreciation and has not proceeded against the petitioner. Moreover, there is provision of appeal against any finding of the State Bar Council before 11 Bar Council of India and under section 37 of the Advocates' Act 1961 against that remedy is available but the O.P. No. 2 has not availed that remedy rather he has lodged F.I.R. against the petitioner. Reference may be made to the case of " State of Haryana V. Bhajan Lal reported in 1992 Supp. (1) SCC 335 wherein para 102 of the said judgement the Hon'ble Supreme Court has held as under:-
"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 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."
19. There are parameters of quashing the F.I.R. if High Court comes to the conclusion that case has been maliciously lodged against any person. The High Court can interfere at the stage of F.I.R. itself.
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20. In view of aforesaid facts and reasons analysis the Court comes to the conclusion that this is a fit case to exercise its power under section 482 Cr.P.C. Accordingly, First Information Report being SC/ST P.S. Case No. 15/2019 dated 26.04.2019, registered under sections 182, 211/403/418/420/468/506/120B of the Indian Penal Code and under section 3(1) (r) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 2015, pending in the Court of learned Additional Judicial Commissioner-XII, Ranchi, is hereby quashed.
21. Cr.M.P. No. 1604 of 2019 stands allowed and disposed of. Pending I.A., if any, stands disposed of.
22. Interim order dated 11.06.2019 is vacated.
( Sanjay Kumar Dwivedi, J.) Satyarthi/