Jharkhand High Court
Yatindra Kumar Das & Anr vs State Of Jharkhand & Ors on 19 September, 2014
Equivalent citations: 2014 (4) AJR 615
Author: Prashant Kumar
Bench: Prashant Kumar
WRIT PETITION ( CRIMINAL ) No. 126 of 2010
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1. Yatindra Kumar Das
2. Fatesh Bahadur Singh .. .. .. .. Petitioners.
Versus
1.The State of Jharkhand
2.The Superintendent of Police, Hatia, Ranchi
3.The Deputy Superintendent of Police, Hatia, Ranchi
4.Ranjit Paswan ... .. .. .. .. .. Respondents.
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For the Petitioners : M/s R.Krishna,R.R.Tiwary,V.K.Tiwary
For the State : Sri Deepak Kr. Prasad, JC to G.P.III
For the Respondent no.4: Sri Rahul Kumar.
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Reserved on 12.09.2014 Delivered on 19/09/2014
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PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR
Prashant Kumar,J. This writ application has been filed for quashing of First
Information Report dated 06.06.2009 of SC/ST P.S.Case no. 30/09
corresponding to G.R.2277/09 under sections 341, 323,354,448/34 of the
Indian Penal Code and Sections 3(1)(X) of the Scheduled Caste and the
Scheduled Tribe ( Prevention of Atrocities ) Act. Petitioners have further
prayed for quashing the entire criminal proceeding initiated on the basis of
aforesaid F.I.R.. Petitioner then prayed for quashing the order dated
23.01.2010passed by the Chief Judicial Magistrate, Ranchi, whereby and where under he issued non-bailable warrant of arrest against the petitioners.
It appears that the petitioners filed an Interlocutory Application, being I.A. No. 4362/2014, and prayed that the writ application be amended by adding the prayer for issuance of appropriate writ/order/ direction/ or writ in the nature of certiorari for quashing the order taking cognizance dated 17.06.2014 ( Annexure-19) passed by learned Judicial Magistrate First Class, Ranchi in aforesaid case.
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2. Before dealing with the rival contention of the parties, I find it appropriate to state the facts of the case in brief :-
Respondent no.4 had filed a First Information Report vide SC/ST Ranchi P.S. Case no. 30/09 (corresponding to G.R. No.2277/09) alleging therein that on 03.06.2009 in between 7.30 a.m. to 8.00 a.m. few persons arrived on Marshal Jeep and Car in the campus of Anil Chemicals and started assaulting the Guard. It is further stated that informant came to know about the persons, who were assaulting the guard, they were Yatindra Kumar Das, D.F.O. East Forest Division ( petitioner no.1) and Fatesh Bahadur Singh , Conservator of Forest, Ranchi Circle( petitioner no.2). It is further alleged that aforesaid persons made query about Nagendra and when the informant replied that Nagendra did not reside there, they asked his name. When he disclosed his name as Ranjit Paswan, they become furious and started assaulting him by saying that "
Maaro saale ko, ye latkhor jaat hai ". It is further alleged that thereafter petitioner no.1 entered inside the house and abused informant's wife by calling her Harijan. It is also stated that petitioners outraged the modesty of informant's wife . It is stated that after hearing hulla, so many persons arrived and then petitioners left the place and at the time of retreat they abused the informant by taking his caste name. Accordingly the present First Information Report instituted under sections 341, 323,354,448/34 of the Indian Penal Code and Sections 3(1)(X) of the Scheduled Caste and Scheduled Tribe ( Prevention of Atrocities) Act.
3. Initially, A.Vijay Laxmi, Addl. Superintendent of Police, Hatia took the investigation of the case. Later on Dy. S.P. Hatia took up the investigation. It appears that Deputy Superintendent of Police filed a requisition in the court of Chief Judicial Magistrate, Ranchi for issuance of warrant of arrest against the petitioners, which was issued by the Chief -3- Judicial Magistrate vide order dated 23.01.2010.It is stated that after issuance of warrant of arrest, the matter was published in the newspaper and then only petitioners came to know that they have been implicated in the present case.
4. It is stated by the petitioners that they have been implicated in the present case by respondent no.4 on the behest of proprietor of M/s Sarita Vanier Industries, Mahilong, against whom a raid conducted by the officers of the Forest Department. It is stated that the officers of Forest Department received information that on 03.06.2009 at about 1.30 A.M. Nagendra Yadav and others were carrying wooden logs on a truck. They chased said truck and seized. It is further stated that when the forest officers were bringing the truck, loaded with wooden logs, to the office of Forest Department at Ormanjhi, they were attacked by Nagendra Yadav, Raju and ten others. It is stated that forest official namely Rakesh Kumar Singh was badly assaulted and his official vehicle ( Gipsy) was damaged by them. Thereafter, the matter reported to the Sikidiri Police Station and accordingly Sikidiri P.S.Case no. 11/09 instituted against Nagendra Yadav, Raju and others under sections 147,148, 149,323,307,353,379,427 of the I.P.C.,section 27 of the Arms Act and section 33 of the Indian Forest Act. It is stated that petitioners came to know that the seized wooden logs were unloaded in the premises of M/s Sarita Vanier Industries, Mahilong and then they, along with other officers, went to the premises of Sarita Vanier Industries on 03.06.2009 at 8.30 a.m. and seized the wooden logs and registers of the said industry and prepared a seizure list. A copy of the said seizure list handed over to Raj Kishore Yadav, who was present at the place of occurrence. It is stated that aforesaid seizure list forwarded to the Chief Judicial Magistrate vide memo no. 50 dated 03.06.2009. It is further stated that said Sarita Vanier Industries and Anil Chemicals are situated in -4- the same campus having only one entrance. It is further stated that both the industries were owned by Rajdeo Yadav and Dilip Kumar Agarwal. It is stated that after seizure, Rajdeo Yadav, Dilip Kumar Agarwal, Raj Kishore Yadav and Nagendra Yadav have been made accused in the forest case vide Annexure-3. It is stated that because of the aforesaid forest case, the proprietor of Sarita Vanier Industries and Anil Chemicals had set up respondent no.4, who is their employee, to file present false case against the petitioners, with an ulterior motive for wreaking vengeance against them due to private and personal grudge. Accordingly, present writ application filed for the relief claimed as stated above.
5. It appears that during pendency of this writ application, it was brought to the notice of this Court that the Investigation Officer requested the State Govt. for grant of sanction to prosecute the petitioners as they are government servant. In view of the aforesaid information this Court directed the Director General of Police and the Sanctioning Authority for taking decision in this regard. Thereafter, charge-sheet submitted on 13.04.2014 and then, J.M. Ist Class, Ranchi vide order dated 17.06.2014 took cognizance of the offences against the petitioners. It appears that Govt. of Jharkhand refused to grant sanction for prosecuting the petitioners vide memo no.2851 dated 20.06.2014. Thus, it is clear that learned Judicial Magistrate took cognizance of the offence against the petitioners in absence of sanction order. Accordingly, petitioners filed Interlocutory Application being I.A.No.4362/2014 for amendment of writ application by making an additional prayer for quashing the order dated 17.06.2014 by which learned Judicial Magistrate, First Class, Ranchi took cognizance of the offence against petitioners.
6. It is submitted by Mr. R.Krishna, learned counsel for the petitioners that the entire criminal proceeding against the petitioners are -5- mala fide and instituted with a view to ulterior motive for wreaking vengeance against them, because they have instituted forest case against the proprietor of Sarita Vanier Industries, Mahilong. It is submitted that Sarita Vanier Industries and Anil Chemicals are sister concern owned by Rajdeo Yadav and Dilip Kumar Agarwal. It is submitted that admittedly respondent no.4 is an employee of Anil Chemicals . Thus, he had been set up by Rajdeo Yadav and Dilip Kumar Agarwal to falsely implicate petitioners. It is submitted that petitioners are Class-I officer of Forest Department. At the relevant time petitioner no.1 was posted as D.F.O. (East) Forest Division, Ranchi, whereas petitioner no.2 was Conservator of Forest, Territorial Circle, Ranchi. They had no grudge against respondent no.4 nor they were knowing him personally from before. Under the said circumstance, there is no occasion for them to go to Mahilong from Ranchi for assaulting and abusing respondent no.4 and his family members. Accordingly, it is submitted that allegation made in the F.I.R. are so absurd and improbable that no prudent person can say that petitioners committed the present crime. It is further submitted that admittedly, both the petitioners are government servant, removable by State Government,thus they cannot be prosecuted without prior sanction of the State Government. It is submitted that admittedly the State Government has not given sanction for prosecuting the petitioners. Under the said circumstance, order of cognizance and consequently the entire criminal proceeding is bad in law and, therefore, liable to be quashed. In this connection learned counsel for the petitioners relied upon the judgment of Hon'ble Supreme Court in State of Haryana.Vs. Bhajan Lal reported in 1992(1) Suppl. SCC-335.
7. On the other hand, Mr. Rahul Kumar, learned counsel for respondent no.4 submitted that it is a settled principle of law that if prima -6- facie offence is made out against the accused then the criminal proceeding cannot be quashed taking recourse of the provisions of Section 482 of the Cr.P.C. or Article 226 and 227 of the Constitution of India.
8. It is submitted that from perusal of First Information Report, it appears that all the offences are made out against the petitioners. Thus, this court has no occasion for interfering with the present criminal proceeding. He then submitted that respondent no.4 and/or his wife is not an accused in Sikidiri P.S.case no. 11/09 or in the forest case lodged after seizure. Thus, they have no grudge or interest to falsely implicate the petitioners. It is then submitted that the present crime has not been committed in discharge of the official duty of the petitioners. Moreover, abusing, assaulting and outraging the modesty of an woman does not come within the purview of official duty of the petitioners. Therefore, no previous sanction required under section 197 of the Cr.P.C. for prosecuting the petitioners. Learned counsel relied upon the various judgments viz. P. K. Pradhan. Vs. State of Sikkim, reported in (2001)6 SCC-704, Prakash Singh Badal and Another . Vs. State of Punjab and others, reported in (2007)1 SCC -1, Virender Prasad Singh. Vs. Rajesh Bhardwaj and others, reported in (2010)9 SCC- 171 and Om Kumar Dhankar. Vs. State of Haryana and another, reported in (2012)11 SCC-252.
9. Learned counsel for respondent no.4 further submitted that in view of Full Bench judgment of Hon'ble Patna High Court in Ramesh Kumar Ravi.Vs. State of Bihar, reported in 1987 PLJR-650, a judicial order of a criminal court, passed under Code of Criminal Procedure cannot be quashed by issuance of a writ of certiorari. Said order can only be challenged by way of an appeal or revision provided under the law. Accordingly, it is submitted that amendment petition field by the petitioners -7- is liable to be rejected, because an order of cognizance cannot be challenged in writ jurisdiction.
10. Sri Deepak Kumar Prasad, JC to G.P.III has adopted the submissions made by Sri Rahul Kumar, learned counsel for respondent no.4 and submitted that present writ application is liable to be dismissed.
11. Having heard the submissions, I have gone through the records of the case.
Admittedly, during the pendency of this case, charge-sheet submitted on 13.06.2014 and on the basis of said charge-sheet learned Judicial Magistrate, Ist Class, Ranchi took cognizance vide order dated 17.06.2014. It further appears from the supplementary counter affidavit filed on behalf of respondent-State stating that State Government has not given sanction to prosecute the petitioners. Since the aforesaid development took place during pendency of this writ application and petitioners filed an application for amendment of the writ application challenging the order taking cognizance, I allow the Interlocutory Application ( I.A.No.4362/2014) and ordered that said Interlocutory Application will be treated as part of this writ application.
12. From perusal of Annexure-2, I find that Nagendra Yadav , Raju and 10 others have been arraigned under sections 147, 148, 149, 323,307,353, 379, 427 of the I.P.C. section 27 of the Arms Act and Section 33 of the Indian Forest Act. in Sikidiri P.S.case no. 11/09 dated 03.06.2009. In the said F.I.R., it is alleged that accused persons had intercepted the forest officials, while they were bringing the seized truck loaded with wooden logs to the office of forest department. It is further alleged that they assaulted forest officers and damaged their vehicle ( Gipsy) and then took away the seized wooden logs. It further appears from Annexure-3 series that petitioners, who are senior forest officers, -8- came to know that accused persons unloaded the wooden logs in the premises of Sarita Vanier Industries, Mahilong. On the said information they conducted raid in the premises of aforesaid Sarita Vanier Industries and seized the wooden logs and prepared seizure list. Thereafter, proprietors of Sarita Vanier Industries, Mahilong and Anil Chemicals namely, Rajdeo Yadav and Dilip Kumar Agarwal were made accused. It further appears that Sarita Vanier Industries, Mahilong and Anil Chemicals situates in same compound. Annexure-7 shows that Anil Chemical Enterprises is owned by Dilip Kumar Agarwal, whereas it appears from Annexure-8 that Sarita Vanier Industry, Mahilong jointly owned by Rajdeo Yadav and Dilip Kumar Agrawal. It is also mentioned that informant of SC/ST Ranchi P.S.case no. 30/09 namely, Ranjit Paswan admits that he is an employee of Anil Chemicals. Under the said circumstance, it appears that after institution of Sikidiri P.S.case no.11/09 and the case under Indian Forest Act, the proprietor of Sarita Vanier Industry has set up respondent no.4 for lodging present case against the petitioners, because petitioners had gone to the joint campus of Sarita Vanier Industry and Anil Chemicals for conducting raid. It appears that respondent no.4 was not knowing the petitioners from before. It further appears that the instant case has been lodged on 06.06.2009 after three days of lodging of Sikidiri P.S.case no. 11/09. It also appears that petitioners sent seizure list in the court of Chief Judicial Magistrate, Ranchi on 03.06.2009 itself and requested learned Chief Judicial Magistrate for taking action against the owner of Saw Mills.
Under the said circumstance, it is clear that respondent no. 4, who is an employee of accused Rajdeo Yadav and Dilip Kumar Agarwal, has been set up to file this case to wreak vengeance against the petitioners.
13. Hon'ble the Supreme Court in State of Haryana.Vs. Bhajan -9- Lal case( Supra) at paragraph no.102 had laid down following seven criteria on which criminal proceeding can be quashed in exercise of power contained under Article 226 of the Constitution of India or Section 482 of the Cr.P.C. :-
"(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 discloses 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 un-controverted 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."
14. In view of the findings arrived by me in the previous paragraph, the present case comes within the four corners of criteria no.7 -10- of Bhajan Lal case.
15. It is relevant to mention that petitioners are senior forest officers and they were not knowing respondent no.4 from before and they had no grudge against him. Under the said circumstance, there is no occasion for them to go to Mahilong only with a view to abuse and assault respondent no.4. Thus, the allegation made against the petitioners in the F.I.R. appears to be absurd and improbable and no prudent man can reach to the conclusion that petitioners have committed present crime. Thus, in my view, the case of petitioners also covered by criteria 5 of Bhajan Lal case(Supra).
16. The contention of learned counsel for respondent no.4 that the order taking cognizance cannot be challenged in writ jurisdiction in view of the judgment of Hon'ble Full Bench of Patna High Court in Ramesh Kumar Ravi.Vs. State of Bihar case (Supra) does not inspire confidence.
17. In Pepsi Foods Ltd.and another .Vs. Special Judicial Magistrate and others reported in (1998)5 SCC-749, the Hon'ble Court has held that the nomenclature in which petition filed is not relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses. If in a case court finds that appellant could not invoke its jurisdiction under Article 226 of the Constitution of India then the Court can certainly treat the petition as one under Article 227 of the Constitution of India or Section 482 of the Cr. P. C. In view of the aforesaid judgment of Hon'ble Supreme Court, the Full Bench Judgment of Hon'ble Patna High Court is of no help to respondent no.4. Moreover, in number of cases including Bhajan Lal Case ( Supra), has held that in exercise of power under Article 226 of the Constitution of India, criminal proceeding can be quashed to prevent abuse of the process of court and/or to secure the ends of justice.
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18. As noticed above, in the instant case both the petitioners are forest officers. It is admitted by the Investigating Officer that for prosecuting the petitioners prior sanction is required, as the accused persons are government servant. It is also stated by the Investigation Officer in the counter affidavit that he applied for sanction order so that petitioners could be prosecuted. In the supplementary counter affidavit dated 31.07.2014 the State of Jharkhand stated that vide memo no. 2851 dated 20.06.2014 it took decision for not prosecuting the petitioners. In other words it refused to grant sanction for prosecuting the petitioners.
19. As noticed above, both the petitioners are senior government officers removable by the order of Government and, therefore, as per Section 197 of the Cr.P.C. they can only be prosecuted after prior sanction of the Government. In the instant case, Government has taken decision for not prosecuting the petitioners and refused to grant sanction. Thus, the order dated 17.06.2014 is illegal being violative of section 197 of the Cr. P.C., therefore, cannot be sustained.
20. It is submitted by learned counsel for respondent no.4 that before quashing the order of cognizance, it is necessary for the Court to see that the accused persons have committed the offences in discharge of their official duty. There must be reasonable connection between the act and the official duty. It is submitted that in the instant case, from perusal of F.I.R. it does not appear that the accused/petitioners went to the house of respondent no.4 in exercises of their official duty and therefore, in view of the various judgments of Hon'ble Supreme Court, referred herein before, no sanction required for prosecuting the petitioners. Aforesaid submission of learned counsel for respondent no.4 can not be accepted.
21. In the instant case, from perusal of of Annexure-2, it is clear -12- that Nagendra Yadav is an accused of Forest Case. Annexure-3 series further shows that petitioners went to the joint campus of Sarita Vanier Industry and Anil Chemicals for conducting raid and search. It is also an admitted position that respondent no.4 is an employee of Anil Chemicals. Respondent no.4 has also stated in the F.I.R. that when petitioners reached in the campus, they made query about Nagendra Yadav. Under the said circumstance, it appears that even respondent no.4 admits that petitioners went in the joint campus of Sarita Vanier Industries and Anil Chemicals in discharge of their official duty. Thus, it is clear that alleged occurrence took place in discharge of official duty of the petitioners. Hence,I am of the view that for prosecuting the petitioners, prior sanction of the Government is necessary as per provision contained under section 197 of the Cr.P.C. Since, in this case, learned Judicial Magistrate took cognizance of the offences against the petitioner in absence of sanction order, thus, I am of the view that the order of cognizance is illegal being violative of section 197 of the Cr.P.C.
22. In view of the findings arrived herein above, I find that entire criminal proceeding in connection with SC/ST Ranchi P.S.case no. 30/09 dated 06.06.2009 corresponding to G.R. No. 2277/2009 is illegal and is an abuse of the process of court.
23. Accordingly, I allow this writ application and quash the entirey criminal proceeding of SC/ST Ranchi P.S.case no. 30/09 corresponding to G.R. No. 2277/2009 pending in the court of Judicial Magistrate, First Class,Ranchi.
( Prashant Kumar, J.) Jharkhand High Court, Ranchi The 19th September, 2014.
Raman/