Jharkhand High Court
Krishna Ballam Tiwary @ Krishna ... vs The State Of Jharkhand on 2 August, 2021
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 01 of 2021
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Krishna Ballam Tiwary @ Krishna Ballabh Tiwari, aged about 61 years, s/o
late Laxman Tiwari, resident of House No.203, Panki Road, Baralota,
PO-Baralota, PS-Daltonganj, District-Palamau (Jharkhand)
..... Petitioner
-- Versus --
1.The State of Jharkhand
2.Govind Kachhap, son of not known to the petitioner, resident Engineer,
Water Supply And Sanitation Division, Medninagar, Palamau, PO and
PS-Medninagar, District-Palamau ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Indrajit Sinha, Advocate
Mr. Ankit Vishal, Advocate
For the O.P.No.2 :- Mr. Kumar Vaibhav, APP
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7/02.08.2021 Heard Mr. Indrajit Sinha, the learned counsel assisted by Mr.
Ankit Vishal, the learned vice counsel appearing on behalf of the
petitioner and Mr. Kumar Vaibhav, the learned counsel appearing on
behalf of the O.P.No.2.
2. This petition has been heard through Video Conferencing in
view of the guidelines of the High Court taking into account the situation
arising due to COVID-19 pandemic. None of the parties have complained
about any technical snag of audio-video and with their consent this
matter has been heard.
3. The present petition has been filed for quashing of the
entire criminal proceeding as well as the First Information Report of
Palamau SC/ST P.S.Case No.09 of 2019, registered for the offence
punishable under sections 341,323,504 and 506 of the Indian Penal Code
and section 3(1)(d) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, pending in the court of learned
Special Judge, SC/ST Act, Palamau at Daltonganj.
4. On the written report of the informant -Govind Kachhap,
the case was registered alleging therein that the petitioner has abused
him by naming his caste and also assaulted by fists and slaps and also
thrown chairs of the office and that for the aforesaid sections the F.I.R
was lodged.
5. Mr. Indrajit Sinha, the learned counsel appearing alongwith
his junior Mr. Ankit Vishal, the learned vice counsel on behalf of the
petitioner submits that now the matter has been compromised between
the O.P.No.2 and the petitioner and for that one I.A. being I.A. No.1653
of 2021 has been filed.
6. Mr. Kumar Vaishav, the learned counsel appearing on behalf
of the O.P.No.2 submits that there is a compromise and there is no
societal interest is involved in the case and in that view of the matter
it can be quashed. He submits that the said I.A is also supported by
affidavit of the O.P.No.2 namely, Govind Kachhap.
7. Mr. Indrajit Sinha, the learned counsel for the petitioner
submits that in the light of "Gyan Singh v. State of Punjab", reported in
2013 1 SCC Cr.160, the case stands covered and the FIR can be quashed.
He further relied in the case of "Shiji v. Radhika" reported in (2011) 10
SCC 705 and submits that it is well settled principle that in the cases
where there is no chance of conviction against the accused and if the
entire exercise of trial is continued to be exercised in futility, the Court
can interfere. He relied in paragraph no.17 of the said judgment, which is
quoted hereinbelow:
"17. It is manifest that simply because an offence is
not compoundable under Section 320 CrPC is by itself no
reason for the High Court to refuse exercise of its power
under Section 482 CrPC. That power can in our opinion be
exercised in cases where there is no chance of recording a
conviction against the accused and the entire exercise of a
trial is destined to be an exercise in futility. There is a
subtle distinction between compounding of offences by
the parties before the trial court or in appeal on the one
hand and the exercise of power by the High Court to
quash the prosecution under Section 482 CrPC on the
other. While a court trying an accused or hearing an
appeal against conviction, may not be competent to
permit compounding of an offence based on a settlement
arrived at between the parties in cases where the offences
are not compoundable under Section 320, the High Court
may quash the prosecution even in cases where the
offences with which the accused stand charged are non-
compoundable. The inherent powers of the High Court
under Section 482 CrPC are not for that purpose controlled
by Section 320 CrPC."
8. He further submits that recently the Hon'ble Supreme Court
has considered the case of public view in the case so far as SC/ST Act is
concerned in the case of "Hitesh Verma v. State of Uttrakhand", reported
in (2020) 10 SCC 710. Paragraph nos.14 and 15 of the said judgment are
quoted hereinbelow:
"14. Another key ingredient of the provision is insult
or intimidation in "any place within public view". What is
to be regarded as "place in public view" had come up for
consideration before this Court in the judgment reported
as Swaran Singh v. State. The Court had drawn distinction
between the expression "public place" and "in any place
within public view". It was held that if an 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, then the lawn
would certainly be a place within the public view. On the
contrary, if the remark is made inside a building, but some
members of the public are there (not merely relatives or
friends) then it would not be an offence since it is not in
the public view (sic). The Court held as under: (SCC pp.
443-44, para 28)
"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
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."
(emphasis in original)
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."
9. In view of the above and considering the submissions of the
learned counsel appearing on behalf of the petitioner as well as the
O.P.No.2 and also looking into the I.A. being I.A. No.1653 of 2021
supported by the affidavit of O.P.No.2, the Court comes to the conclusion
that there is no societal interest involved and there is no chance of
conviction in view of the further development as it has been considered
by the Hon'ble Supreme Court in the cases stated supra.
10. Accordingly, the entire criminal proceeding as well as the
F.I.R of Palamau SC/ST P.S.Case No.09 of 2019 registered for the offence
punishable under sections 341,323,504 and 506 of the Indian Penal Code
and section 3(1)(d) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, pending in the court of learned
Special Judge, SC/ST Act, Palamau at Daltonganj is quashed and set
aside.
11. Cr.M.P. No.01 of 2021 as well as I.A.No.1653 of 2021
stand allowed and disposed of.
12. I.A., pending if any, also stands disposed of.
( Sanjay Kumar Dwivedi, J)
SI/,,
