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[Cr. M. P. No. 220 of 2007]
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
Cr. M. P. No. 220 of 2007
...
1. Sanjeev Kumar Jalan
2. Rajeev Jalan @ Banti Jalan … … Petitioners
-V e r s u s-
1. State of Jharkhand
2. Pyare Lal Das ... Opposite Parties.
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioners : - Mr. Rajesh Kumar, Advocate.
For the State : - A.P.P.
For the O. P. No. 2 : – M/s. Saibal Mitra, P. Kumar and R. Satendra, Advocates.
…
C.A.V. On : – 27/07/2010 Delivered On: – 13 /08/2010
…
2/ 13. 08 .2010 Heard the learned counsel for the petitioners, learned counsel for the
State and the learned counsel for the Opposite Party No. 2.
2. The instant application under Section 482 of the Cr.P.C. has been
filed by the petitioners, praying for quashing the impugned order dated-25.09.2006,
passed by the Chief Judicial Magistrate, Giridih in Complaint Case No. 437 of
2006, whereby cognizance of the offences under Sections 323 and 379 of the I.P.C.
and Sections 3 and 4 of the Scheduled Castes & Scheduled Tribes (Prevention of
Atrocities) Act, was taken against the petitioners, whereafter the case was
transferred to the Court of the S.D.J.M., Giridih.
3. The facts in brief, relevant for the disposal of this case, are as
follows: –
A complaint case was lodged by the Opposite Party
No. 2, Pyare Lal Das before the Chief Judicial Magistrate,
Giridih on 13.04.2006, alleging therein that the petitioners
along with others, had visited his land and tried to forcibly
grab his land and had started raising some illegal constructions
thereon. His complaints to the Police did not yield any prompt
relief. Thereafter, he filed an application before the Sub-
Divisional Magistrate, Giridih for restraining the petitioners
from illegally encroaching upon his land. Subsequently on the
alleged date of occurrence, while the complainant was on his
way to the market to buy some house-hold goods, he saw that
the petitioners alongwith some labourers were constructing
boundary wall over his land. On his protest, the accused
persons allegedly abused and assaulted the
complainant/Opposite Party No. 2 by referring to his caste and
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[Cr. M. P. No. 220 of 2007]had threatened him with dire consequences, if he raise any
objections. He has further alleged that in course of the scuffle,
the accused persons dishonestly removed a sum of Rs.530/-
from his pocket. On his alarms, some persons from his nearby
village rushed to rescue him and upon seeing them the accused
petitioners fled away.
In course of the enquiry conducted by the court
below, the complainant and his witnesses were examined and
on the basis of their statements, the learned court below took
cognizance for the aforementioned offences.
4. The petitioners have assailed the impugned order of cognizance and
the continuation of the criminal proceedings against them mainly on the ground that
the impugned order has been passed by the court below without application of
judicial mind to the admitted facts of the case which would amply declare that a
dispute in respect of the land in question, was pending since long between the
petitioners and the complainant and that the land belongs exclusively to the
petitioners who have mortgaged the same with the Union Bank of India, Giridih
Branch way back in 1999 for the purposes of obtaining loan and as such, the
petitioners have every right to construct the boundary wall over the lands and to use
the same in accordance with their own choice.
5. Learned counsel for the petitioners explains that in the complaint
filed by the Opposite Party No. 2, a proceeding under Section 144 of the Cr.P.C
was initiated., in which a Report from the Police was called for. The Police Report
had confirmed that the petitioners are the rightful owners of the land in question and
the same is in their possession. The complainant has suppressed all the material
facts and thereby, has mislead the court below to believe the statements of the
complainant as prima facie true.
Learned counsel submits further, that the facts would amply
demonstrate that the complainant, with a revengeful and malicious motive, has filed
the case entirely on false allegations. The entire story as created by the complainant
in his allegations are false and highly improbable as because, there could be no
occasion for the petitioners to indulge in any such acts of offence against the
complainant, since admittedly, the land was already in their possession. The
continuation of such proceedings against the petitioners is entirely an abuse of the
process of Court.
In support of his arguments, learned counsel refers to the
judgment of the Supreme Court in the case of State of Haryana and others-versus-
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[Cr. M. P. No. 220 of 2007]
Ch. Bhajan Lal and others reported in AIR (SC) 1992 604.
6. Learned counsel for the Opposite Party No. 2 on the other hand
would argue that the learned court below has acted on the basis of the statements of
the complainant, which finds support from the statements of his witnesses recorded
in course of enquiry and while taking cognizance, the learned court below is only
required to consider as to whether the materials available on record would make
out, prima facie any offence. Learned counsel argues that the grounds taken by the
petitioners are not such, as could be appreciated at the stage of cognizance. Rather,
these are grounds, which could be appreciated only in course of trial. Learned
counsel explains further that the petitioners are trying to mislead by distorting the
facts. Even the Police Report, referred to by the petitioners, would indicate that out
of the 32 Bighas of lands, only 25 bighas belong to the petitioners and the
remaining seven bighas belongs to the Opposite Party no. 2 and it is this portion of
the seven Bighas of the land that the petitioners had tried to grab forcibly and
illegally. The Opposite Party No. 2 had acquired the lands from the erstwhile owner
of the lands and till date, he has been paying rent to the Government and is in
cultivating possession of the lands.
In support of his contentions, learned counsel would refer to
and rely upon the judgment of the Supreme Court in the case of Gangula Ashok
and Another-versus-State of A.P. Reported in 2000 (2) BLJ 472.
7. From the grounds advanced by the petitioners, considering the
reliance placed by them on the judgment of the Supreme Court in the case of Ch.
Bhajan Lal (Supra), it appears that the petitioners have challenged the continuation
of the proceedings on the ground that it is an abuse of the process of Court.
8. The question as to under what circumstances and what categories of
cases, can a criminal proceeding be quashed either in exercise of extra ordinary
powers of the High Court under Article 226 of the Constitution of India or in
exercise of the inherent powers under Section 482 of the Code of Criminal
Procedure, have been raised in several cases both before the Supreme Court as well
as before the High Courts. After extensively deliberating on the issue, the Supreme
Court in the case of Ch. Bhajan Lal (Supra), has enumerated as many as seven
categories of circumstances under which the High Court in exercise of its inherent
powers under Section 482 of the Cr.P.C. may quash the the entire criminal
proceedings following the F.I.R. Out of the several categories, the one which is
relevant in the context of the grounds advanced by the petitioners in the present
case, is quoted in the following terms: – “Where a criminal proceeding is
manifestly attended with mala fide and/or where the proceeding is maliciously
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[Cr. M. P. No. 220 of 2007]
instituted with an ulterior motive for wreaking vengeance on the accused and with
a view to spite him due to private and personal grudge.”
However, while referring to such a circumstance of a given
situation, where false and vexatious charges of corruption and venality may be
maliciously attributed against any person holding a high office and enjoying a
respectable status, the apex Court has also cautioned that the power of quashing a
criminal proceeding even in such a given situation should be exercised very
sparingly and with circumspection and that too in the rarest of rare cases. The Court
will not be justified in embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the F.I.R. or the complaint. The
extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court
to act according to its whim or caprice. With reference to such a peculiar situation,
the apex Court has further observed in the following manner : –
“In such a piquant situation, the question is what
would be the remedy that would redress the grievance of the
verily affected party? The answer would be that the person
who dishonestly makes such false allegations is liable to be
proceeded against under the relevant provisions of the Indian
Penal Code – namely under Section 182 or 211 or 500 besides
becoming liable to be sued for damages”.
9. Referring to the present case, as it appears the allegations made in
the complaint, do clearly constitute the offences justifying taking of cognizance of
the offences by the Magistrate. The facts of the present case, in my opinion, do not
fall in any one of the categories enumerated by the Supreme Court in Ch. Bhajan
Lal’s case (Supra) and therefore, does not call for the exercise of the inherent
powers of this Court to quash the order of cognizance and the criminal proceedings
pending against the petitioners.
10. The facts pleaded by the petitioners may suggest that a dispute in
respect of the land under reference in the case is pending between the complainant
and the accused persons since long. Both the petitioners as well as the complainant/
Opposite Party No. 2 have been claiming their right of title and possession over the
lands. As per the Police Report submitted in the 144 Cr.P.C. proceedings, the
possession over 25 Bighas of lands appears to have been declared in favour of the
petitioners, whereas the claim of the Opposite Party No. 2 is in respect of another
chunk of land measuring 7 Bighas over which the petitioners are alleged to have
attempted to encroach. If such is the claim of right made by the complainant, there
may be reason for him to protest against the alleged acts of encroachment
committed by the petitioners and such protests may have the effect of causing
annoyance, irritation, discomfort and discomfiture to the petitioners. These are
apparently disputed questions of facts, which cannot possibly to be looked into or
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[Cr. M. P. No. 220 of 2007]
appreciated at the time of taking cognizance of the offences by the Magistrate,
when he is called upon to consider, on the basis of the statements of the
complainant and the complainant’s witnesses, to apply his mind and to satisfy
himself as to whether the materials do make out any prima facie case for any
offence. If the Magistrate is satisfied, then he has power to take cognizance of the
offence and to direct the accused persons, prima facie found responsible for such
offence to face trial. The obligation of the Magistrate at the stage of taking
cognizance, therefore, extends only to consider the allegations in the complaint
petition and the statement of the complainant and his witnesses and to find out as to
whether a criminal offence is prima facie made out or not or whether there is any
statutory bar.
11. Applying the above standards of jurisdictional requirements, the
impugned order of cognizance, as passed by the learned court below in the context
of the allegations in the complaint and the statements of the complainant and his
witnesses does not, in my opinion, suffer from any illegality or infirmity, which
would attract invocation of the inherent jurisdiction of this Court for quashing the
entire criminal proceeding following the order of cognizance.
12. There being no merit in this application, the same is accordingly,
dismissed. The petitioners would be at liberty to agitate all such grounds as pleaded
by them in their defence in course of trial before the trial court.
(D.G.R. Patnaik, J.)
APK/A.F.R.