IN THE HIGH COURT OF JHARKHAND, RANCHI
Criminal M.P. No.267 of 2011
Ajay Gobind Prasad-- -- -- -- -- --- -- --Petitioner
Versus
1. State of Jharkhand
2. Anuj Kashyap-- -- -- -- -- -- -- -- --Opposite Parties
CORAM : THE HON'BLE MR.JUSTICE D.K. SINHA
For the Petitioner : M/s. Nityanand Prasad & Rajesh Kumar Mahtha, Advocates
For the State : Mr. V.S. Jha, A.P.P.
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Reserved on: 13-5-2011 Pronounced on: 29 - 06-2011
D.K. Sinha, J. The petitioner has invoked the inherent jurisdiction of this Court
under Section 482 of the Code of Criminal Procedure for quashment of his
entire criminal proceedings, arising out of Kotwali P.S. Case No.377/04,
corresponding to G.R. No.2117/04, including the FIR.
2. Criminal law was set in motion on the written report
presented by the informant-opposite party No.2 wherein who narrated that
his wife Sarita Kujur, having her Account No.0001190010729 C.I.P, Patra
Toli, Kanke, Ranchi, had sent a written complaint to the Chief General
Manager, Patna against the Upper Bazar Branch of the State Bank of
India, Ranchi on 5.5.2004. On 6.5.2004 when his wife Sarita Kujur went to
the Upper Bazar Branch of State Bank of India, she was asked by the
counter clerk to visit the chamber of the Bank Manager. The informant
admitted that a loan certificate was granted by the Manager to him earlier
in favour of the Oil India Corporation. The informant further narrated that
there were six persons in that chamber, including the Bank Manager Sri
A.K. Basant and one Sri Ajay Gobind Prasad (petitioner herein), who used
filthy language by addressing her "Tribe" and they asked her by putting
pressure to write a compromise letter and accordingly, she was compelled
to write, being a tribal woman alone in the chamber, in absence of any
woman of any organization or any woman officer of the Bank, which
constituted an offence. At that time, his wife Sarita Kujur was ill,
undergoing treatment under the care of Dr. Sanjay Kumar and the
accused persons compelled her to write a compromise letter. Explaining
the delay in lodging the FIR, the informant stated that he belonged to
Rourkela where he was working in Doordarshan and that there was
marriage of his sister-in-law on 9.5.2004 and thereafter, his daughter fell ill
and brought under care and treatment of Dr. Ajay Ghosh. The informant
requested to seize the impugned letter, case withdrawal ledger register as
also the computer harddisc so that the evidence may not be tampered and
further requested to take appropriate step in the interest of social justice
against the tribal woman. Copies of the letter were sent to the several
authorities. A case was registered under Sections 342/506 of the Indian
Penal Code as also under Sections 7/8/9 of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989, giving rise to
Kotwali P.S. Case No.377/04 on 20.7.2004.
3. It would be evident from the FIR, the learned counsel Mr.
Prasad by initiating his argument submitted, that the informant wanted
social justice for his wife. Yet, police registered a case under Sections
7/8/9
of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, ignoring that such Sections in the Special Act were not the
offences at all. An explanation was called for from Sri A.K. Basant, the
then Chief Manager, Upper Bazar Branch of State Bank of India, Ranchi
by the Dy.S.P., Ranchi vide Memo No.817 dated 15.3.2010 after lapse of
six years and the explanation was given on 23.3.2010 stating all the facts.
The case was lodged after 2 ½ months of the alleged occurrence without
any plausible explanation with mala fide intention and the police registered
the case without verifying the veracity of the allegation made. In the facts
and circumstances, therefore, criminal proceedings against the petitioner
would be deemed to be an abuse of the process of law as Sections 7/8 of
the Special Act deal with setting up of Scheduled Castes and Scheduled
Tribes Protection Cell and Section 9 of the Act deals with nomination of
Nodal Officer. None of the above Sections of the Special Act attracted
penal offences and therefore, the case was registered without application
of mind. It is nowhere alleged that the petitioner and others had humiliated
the wife of the informant and that she was treated so because of her being
a member of Scheduled Tribe. The prosecution of the petitioner under
relevant Section of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 otherwise was also not maintainable
as it was nowhere alleged by the informant husband that the petitioner
accused was not a member of the Scheduled Tribe and he intentionally
intimidated her with intent to humiliate her.
4. The learned counsel Mr. Prasad relied on the decision of the
Supreme Court. In Gorige Pentaiah versus State of Andhra Pradesh and
others, reported in (2008) 12 Supreme Court Cases 531, the Supreme
Court held,
“6. In the instant case, the allegation of Respondent 3 in
the entire complaint is that on 27-5-2004, the appellant abused
them with the name of their caste. According to the basic
ingredients of Section 3(1)(x) of the Act, the complainant ought
to have alleged that the appellant-accused was not a member
of the Scheduled Caste or a Scheduled Tribe and he
(Respondent 3) was intentionally insulted or intimidated by the
accused with intent to humiliate in a place within public view. In
the entire complaint, nowhere it is mentioned that the appellant-
accused was not a member of the Scheduled Caste or a
Scheduled Tribe and he intentionally insulted or intimidated with
intent to humiliate Respondent 3 in a place within public view.
When the basic ingredients of the offence are raising in the
complaint, then permitting such a complaint to continue and to
compel the appellant to face the rigmarole of the criminal trial
would be totally unjustified leading to abuse of process of law.”
5. The learned counsel further submitted that the case was
lodged by the informant with oblique purpose who did not allow his wife to
come forward. Admittedly, a written complaint was sent by her to the Chief
General Manager, State Bank of India, Patna through the General
Manager, State Bank of India, Zonal Office, Ranchi imputing some
allegations against the petitioner that when she could not draw the amount
from her ATM card, she went to the Upper Bazar Branch of State Bank of
India on 10.4.2004 and discussed with the petitioner, he assured that all
problems would be set at right within half an hour and her ATM card
would start working. After one hour, the ATM rejected her ATM card with
the remarks in the slip “Response Code 055 invalid trans or account”. She
was having sufficient balance in her account but even then her ATM card
did not work, to which the petitioner explained, being the officer of the
Bank, that her account since was not in operation for the last one year, so
the ATM did not accept the ATM card and she was requested to come on
Monday for manual transaction for withdrawal of the cash as the working
hours of the Bank was over. On Monday i.e. on 12.4.2004, she visited the
Bank and withdrew cash from her account by manual transaction. She
was again assured by the petitioner that her ATM card would start working
within half an hour but the same could not be activated much beyond the
period assured by him and the ATM card was again rejected with the
endorsement “054 contact Bank”. She complained that she was found
herself harassed by the Bank staff, mentally, economically, and financially
and she criticised the mode of working of that Branch without imputing any
other allegation against the petitioner. Complaint was sent on 5.5.2004
which was brought to the notice of Chief General Manager. The learned
counsel further attracted the attention that it was nowhere alleged in the
said complaint that the petitioner had extended torture to Sarita Kujur or
the petitioner had in any manner misbehaved her. The petitioner tried to
explain that only on account of non operation of the savings account, for
long, the ATM was not accepting the card. A solvency certificate was
issued by the petitioner to Sarita Kujur as she was holding her Bank
Account with the deposit of Rs.34,593.31/-. On the complaint made by
Sarita Kujur, the Chief Manager, State Bank of India replied, “The Branch
was linked with all India networking ATM in early 2004, the system was
new to us, further, your account was dormant which created all the
problems”. The Chief Manager further stated and expressed hope that she
might be enjoying the facility perfectly and at the same time, regretted for
the inconvenience caused to her with the assurance of the best banking
services in the future. This letter was sent to Sarita Kujur by registered
post on 14th July, 2004 itself but Sarita Kujur came forward by imputing
any kind of allegation. The allegation as levelled by the informant was
general and omnibus and not specific against the petitioner except he was
present in the chamber of the Branch Manager.
6. The learned counsel further pointed out that Sarita Kujur did
not come forward alleging by filing case that she was humiliated within the
public view so as to attract offence and therefore, criminal prosecution of
the petitioner would amount to miscarriage of justice as no offence much
less alleged under Sections 7/8/9 of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 nor under Section
342 of the Indian Penal Code is made out to proceed against him.
7. Reliance has been placed upon an earlier decision of the
Apex Court. In Masumsha Hasanasha Musalman versus State of
Maharashtra, reported in 2000 AIR SCW 719, the Apex Court had held
much earlier,
“In the instant case, there is no evidence at all to the
effect that the accused committed the offence alleged against
him on the ground that the deceased is a member of a
Scheduled Caste or a Scheduled Tribe. To attract the
provisions of S.3(2)(v) Act, the sine qua non is that the victim
should be a person who belongs to a Scheduled Caste or a
Scheduled Tribe and that the offence under the Penal Code is
committed against him on the basis that such a person belongs
to a Scheduled Caste or a Scheduled Tribe. In the absence of
such ingredients, no offence under S.3(2)(v) Act arises.”
8. Finally, the learned counsel submitted that the facts of the
case as presented by the informant did not entail that an offence under
Sections 342/506 of the Indian Penal Code was attracted against the
petitioner so as to call for his criminal proceeding.
9. In spite of notice sent to the informant-opposite party No.2,
he did not chose to appear. The State-opposite party since filed the
counter-affidavit, I find that the counter-affidavit of the informant in the
police case is not of much relevance.
10. State-opposite party in its counter-affidavit stated that there
was a prima facie case under Sections 342/506 of the Indian Penal Code
as also under Sections 3/4 read with Sections 7/8/9 of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act against the
accused who addressed Sarita Kujur an “Adivasi” in abusive words by
wrongfully confining her in the chamber of the Branch Manager and asking
her to sign on a compromise paper. It was further stated that there was
no evidence of vengeance and malice for institution of a case against the
petitioner and others. In the FIR, it was mentioned that on the date of
occurrence wife of the informant was abused in the chamber of the
Manager, Upper Bazar Branch of the State Bank of India and the
petitioner participated in the alleged offence as he was present in the
chamber and therefore, petitioner was also liable under Section 8 of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act.
11. Having regard to the facts and circumstances of the case, I
find that the informant is not the victim and he was also not the eye-
witness of the occurrence. He derived information whatever about the
alleged occurrence may be from his wife, who did not prefer to lodge any
case before the police or before the Court. I find substance in the
argument of the learned counsel for the petitioner that police officer
without application of mind and appreciation of law, instituted the case
under Sections 7/8/9 of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, which are not relevant for not being the
penal Sections. I further find that the informant failed to impute that his
wife was abused not because she was a tribal woman and the petitioner
was not a member of Scheduled Tribe and the petitioner intentionally
insulted her within public view. Therefore, I find that no part of the
occurrence alleged did take place so as to attract relevant offences under
Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The petitioner has brought the
complaint petition on the record (Page-15), which was addressed to the
Chief General Manager by Sarita Kujur, wherein she expressed her
anguish about the mode of working as her ATM card could not be
activated and that no personal allegation was made against the petitioner
or the Manager of the Bank, rather it was the general allegation, which
was replied by the Chief Manager (Page-19) acknowledging the receipt of
her complaint and regretting for the inconvenience caused to her with the
assurance of the best banking services in the future. I find from perusal of
the said complaint that Sarita Kujur nowhere alleged that the petitioner
abused by addressing her ‘tribal woman’ or otherwise used defamatory
words after confining her in the chamber. Even no plausible explanation
could be given by the informant about inordinate delay of 2 ½ months’ in
lodging the FIR. I find from the written report that the alleged occurrence
took place in the chamber of the Manager where six persons were
present, including the Manager and the petitioner and not in the public
view. Such letter of compromise alleged to be signed by Sarita Kujur could
not be procured during investigation in the case diary and the counter-
affidavit is also silent about such letter. Above all, the informant of the
case failed to give a reasonable explanation as to why not Sarita Kujur
herself instituted the case before the police, though she frequently visited
Ranchi and operated her account in the Upper Bazar Branch of the State
Bank of India.
12. In Asmathunnisa versus State of A.P., reported in AIR 2011
SC (Criminal) 1016, the Apex Court held,
“27 .In a recent decision in M. Mohan v. The State, 2011
(3) SCALE 78: (AIR 2011 SC 1238) this Court again had an
occasion to consider the case of similar nature and this court
held that if all the facts mentioned in the complaint are accepted
as correct in its entirety and even then the complaint does not
disclose the essential ingredients of an offence, in such a case
the High Court should ensure that such frivolous prosecutions
are quashed under its inherent powers under section 482 of the
Cr.P.C.”
13. I find that the criminal prosecution of the petitioner in the
facts and circumstances cannot be sustained under law, which has been
brought about maliciously by the informant for a trifling matter since the
ATM card of his wife Sarita Kujur could not be activated for the reason
that the account of Sarita Kujur was not in operation for a long time. There
is no specific allegation against the petitioner except that he was present
in the chamber of the Manager and in her letter, addressed to the Chief
General Manager, State Bank of India, Patna, she communicated her
grievance because her ATM card could not be activated and the
petitioner had explained the reason and facilitated her to withdraw her
money by manual operation. Otherwise on the face of allegation made by
the informant in his written report also, no prima facie offence is made out
against the petitioner.
14. For the reasons stated above and relying upon the
propositions of law referred to hereinabove the prosecution of the
petitioner cannot be sustained under law and accordingly, the same is
quashed as against the petitioner Ajay Gobind Prasad in Kotwali P.S.
Case No.377/04, corresponding to G.R. No.2117/04, pending before the
CJM, Ranchi.
15. This petition is accordingly allowed.
(D.K. Sinha, J.)
S.B./A.F.R.