Dinesh Ramsanehi Yadav And ... vs The State Of Maharashtra Through ...
2002 Latest Caselaw 1111 Bom

JUDGMENT

J.G. Chitre, J.

1. The counsel appearing for the parties have been heard at length in context with the annexures and the statements recorded during the course of investigation.

2. Shri Thorat, counsel appearing for the petitioners, submitted that this is the second round of battle in the High Court when the petitioners are challenging their indictment in the prosecution on frivolous and baseless allegations. He submitted that after the charge was framed against them they had filed a writ petition before the High Court bearing criminal writ petition No. 328 of 1996 which was decided by the Single Bench of this Court on 11.7.1997. He pointed out that while deciding the said writ petition, the single Bench of this Court has directed the learned Special Judge to reconsider the application for discharge filed by the petitioners and pass appropriate orders. (emphasis provided). The Single Bench had permitted the parties to produce their documents of title. Shri Thorat submitted that when such were the directions, it was incumbent on the learned Special Judge to consider the documents produced by the petitioners in support of their contention of innocence and discharge from the said trial. Shri Thorat submitted that when number of documents were produced before the Court which were public documents, it was the duty of the learned Special Judge to scrutinize them, to assess them properly and to come to a conclusion that the petitioners are not to be prosecuted. He pointed out that the learned Judge after considering those documents concluded that for the purpose of occupation of the land admeasuring 4500 sq. mtrs., the petitioners should have obtained the permission of competent authority and in the absence of that, their possession over the said piece of land cannot be treated to be lawful and, therefore, prima facie they committed offence punishable under Section 3(iv)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act" for convenience).

3. Shri Thorat further pointed out the statement of original complainant Smt. Janakibai Marya Bare in view of the F.I.R. lodged by her which has been recorded by Dindoshi Police Station in context with C.R. No. 33 of 1995 on 13.1.1995. Shri Thorat pointed out that in the aid statement said Smt. Janakibai has alleged that one of the petitioners Ramsanehi Yadav has constructed his but 10 years prior to 13.1.1995. That means in the month of January 1985 or so. At this juncture, Shri Thorat pointed out that the provisions of the Act came in force in the month of January 1990. Therefore, the said alleged act cannot be looked upon retrospectively in context with provisions of a penal act in relation to a criminal prosecution. Shri Thorat further pointed out that Janakibai has made the allegation in her F.I.R. that in the recent past Ramsanehi Yadav and his son Dinesh Yadav had constructed a latrine in the land in occupation of said Jankibai and her near relatives who happens to be members of Scheduled Tribes. But there is no mention of even the attempt of constructing a latrine on the said land when the panchanama was drawn in the presence of panch witnesses. Shri Thorat submitted that when the petitioners have positively and convincingly pointed out to the Court that they are in lawful occupation of the land which was 4500 sq. meters and the said act was prior to the date of coming in force of the provisions of the Act, the learned Special Judge should have discharged them instead of framing a charge against them for proceeding further against them in context with the said prosecution.

4. Shri Thorat submitted that as the learned Special Judge has committed the error in law so also the error n facts and has landed in error of dismissing the application for discharge, this Court be pleased to allow the said prayer now in the interest of justice. He submitted that if that is not done, the petitioners would be still involving themselves in the rounds of litigation and would be put to trouble, annoyance and agony.

5. Shri Saste vehemently opposed the prayer and submitted that the act of dismissing the application praying for discharge on the part of the learned Special Judge is correct, proper and legal because there is material on record to come to a conclusion that prima facie the petitioners have committed the offence for which they are facing the trial in the said Court. He submitted that the original complainant happens to be the member of scheduled tribe and her land has been grabbed by the petitioners and they are conducting the hotel and doing number of activities prejudicial to the rights of occupancy and ownership of the complainant and her relatives. He made reference to the statement of Janakibai and panchanama in this context. Shri Saste submitted that the writ petition be dismissed.

6. Sub-section 1(iv) of Section 3 of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred; Sub-section 1(v) of Section 3 provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.

7. Keeping in view the provisions of Sub-section 1(iv) and (v) of Section 3 of the act, the procedure which the learned Judge will have to adopt would be the procedure enacted by Chapter XIX of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code" for convenience). Section 239 of the code provides that if, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

8. Provisions of Sub-section (1) of Section 240 of the Code further provides that if, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. Other sections are not necessary to be referred to at this juncture because they are related to the stand taken by the accused of either pleading guilty or pertaining to that procedure which the Magistrate is required to adopt for proceeding further in the prosecution against the accused who he thinks needs to be prosecuted further. Here, in this case, the accused not only orally pleaded for discharge but preferred an application praying for discharge.

9. When that was the situation, the Magistrate, may be Special Judge, was bound to examine the material which was sent to him along with the police report and in view of the directions of the High Court and in the absence of that otherwise also was bound to consider the material brought to his notice by the accused who was not pleading guilty but was praying for discharge. He should have been careful and serious about the words which are used in Sections 239 and 240 of the Code which were indicating that he was duty bound to give the opportunity of being heard not to the prosecution only but to the accused also and opportunity of being heard means he was obliged to apply his judicial mind carefully and seriously in context with the submissions which were made before him in support of the plea of discharge made by the present applicants.

10. The order which has been assailed by the petitioners doe snot show such judicial application of mind on the part of the Special Judge. Instead, the leaned Special Judge dismissed the plea of discharge and the application by pointing out that for being in possession of the said land the petitioners did not obtain the permission of the competent authority. In fact, it was not necessary and exactly the same thing has been missed by the learned Special Judge and, therefore, he has landed in error.

11. The learned Judge should have seen that there is not an iota of material in panchanama to indicate that there was an attempt to construct a latrine. Had there been so, the panch witnesses would have noticed the traces of acts of the petitioners in that context and the panch witnesses and the authorities drawing the panchanama would have noticed lingering marks left behind of such acts on the part of the petitioners. But the panchanama is conspicuously silent about that. The statement which has been elaborately recorded shows the Janakibai nowhere stated in her statement which was immediately recorded after here F.I.R. was recorded, alleging that the petitioners were in unlawful possession of the said land or portion of the said land immediately prior to the said F.I.R. and within the period of operation of the provisions of the Act. Here statement conspicuously points that the said act was 10 years back. It means that it was relating to that period when the provisions of the Act were not in force. No retrospective effect can be given to penal provisions and cannot be given to the prosecution which is revolving around such penal provisions.

12. Section 239 unequivocally empowers a Magistrate or a Special judge to discharge such an accused if he considers the charge against the accused to be groundless. What he is obliged to do is to record the reasons for so doing. When the possession of the petitioners in respect of that portion of land admeasuring 4500 sq. mtrs. was lawful, was supported by registered documents, his act of starting a grocery shop and hotel was justified by his act of obtaining the permission from the competent authorities. When that is so how that possession can be said to be unlawful as it has been contemplated by provisions of Sub-section 1(iv) and (v) of Section 3 of the Act? The learned Magistrate was obliged to note the words "wrongfully occupies", "wrongfully dispossesses" which have been used in Sub-sections 1 (iv) and (v) of Section 3. And for the purpose of coming to a conclusion whether his possession was wrongful or lawful it was necessary for him to have probed in it for examining its potentiality in favour of the plea of innocence put forth by the present petitioners in the said prosecution.

13. Further, the prosecution, in these days, involves lot of expenditure, consumption of excessive time and energy. A person who is put to trial and is required to attend the Court has to undergo lot of agony and resultant psychological and mental torture coupled with significant humiliation. Therefore, every Court has to be careful and serious of such consequences resulting form the act of undergoing the ordeal of prosecution. Prosecution involves attendance of accused at various stages. Every stage is painful, humiliating, annoying and expenditure incurring in engaging the assistance of a lawyer, procuring the presence of the witnesses on his side, for putting his case before the Court. Therefore, the plea put forth of innocence or discharge has to be promptly taken care of and has to be promptly adjudicated in accordance with the provisions of law and cardinal principles of criminal jurisprudence. There is no escape from it as the rule of law stands.

14. Therefore, the learned Special Judge was obliged to examine the documents which were produced before him which were all public documents. There was no need for the petitioner to examine any witnesses in support of those documents. Their perusal candidly, consciously, carefully, would have also enabled the learned Special Judge to come to the conclusion that there was no need of proceeding further in the said prosecution. But, unfortunately, that has not been done by the learned Special Judge and resultantly the petitioners are required to come to the High Court again and to make a prayer to pass a final order considering their plea of innocence and discharge.

15. This Court is supported in this view by the judgment of the Supreme Court in the matter of State of West Bengal and Ors. v. Swapan Kumar Guha and Ors., wherein the Supreme Court has held that whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence. If, on the other hand, the Court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual. In this case, that stage has already gone and now the petitioners are in the midst of prosecution and urging for their discharge.

16. For avoiding a repeated battle of litigation in the arena of the Court premises, for the purposes of upkeeping the administration of justice, for the purposes of nipping out the possibility of miscarriage of justice and resultant annoyance, humiliation and waste of the energy of the petitioners, this Court is constrained to pass the following order allowing their prayer of discharge.

17. Thus, the petition stands allowed by granting the writ of certiorari in favour of the petitioners. The order passed by the learned Special Judge dismissing the petition of the petitioners praying for discharge. So also his order of framing the charge against them for proceeding further in the prosecution against them stands quashed. They are discharged from the said prosecution. Rule stands made absolute. No order as to costs.