Jharkhand High Court
Shibu Mahatha @ Shiv Shanker ... vs The State Of Jharkhand on 28 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.554 of 2020
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Shibu Mahatha @ Shiv Shanker Mahtha aged about 53 years, son of Late
Prafulya Mahtha, resident of Village Dumarjor, P.O. Chiksia, P.S. Chas (M),
District Bokaro (Jharkhand) .... .... .... Petitioner
Versus
1. The State of Jharkhand
2. Suresh Kumar Murmu, son of Bhola Nath Manjhi, resident of Choura, P.O.
Narayanpur, P.S. Pindrajora, District Bokaro, Jharkhand
.... .... .... Opposite Parties
With
Cr.M.P. No.3755 of 2017
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Suresh Thakur S/o Markandey Thakur, R/o Plot No.186, Co-Operative
Colony, P.O. & P.S. Bokaro Steel City, District Bokaro
.... .... .... Petitioner
Versus
1. The State of Jharkhand
2. Suresh Kumar Murmu, son of Bhola Nath Manjhi, resident of Choura, P.O.
Narayanpur, P.S. Pindrajora, District Bokaro, Jharkhand
.... .... .... Opposite Parties
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners : Mr. Sanjay Prasad, Advocate
(In Cr.M.P. No.554 of 2020)
Mr. R.S. Mazumdar, Sr. Advocate
Mr. Srikant Swaroop, Advocate
(In Cr.M.P. No. 3755 of 2017)
For the State : Mr. P.K. Appu, A.P.P.
(In Cr.M.P. No.554 of 2020)
Ms. Priya Shrestha, Advocate
(In Cr.M.P. No. 3755 of 2017)
For the O.P. No.2 : Mr. Sanjay Kumar, Advocate
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04/28.07.2021 Heard Mr. Sanjay Prasad and Mr. R.S. Mazumdar, learned senior
counsel for the petitioner assisted by Mr. Srikant Swaroop and Mr. P.K. Appu
and Ms. Priya Shrestha, learned A.P.P. for the State as well as Mr. Sanjay
Kumar, learned counsel for the opposite party no.2.
These criminal miscellaneous petitions have 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.
In both the petitions common order taking cognizance are under
challenge that is why both the petitions have been heard together with
consent of parties.
The petitioners have prayed for quashing the order dated
13.09.2017 passed in connection with Protest Petition cum C.P. Case No.766
of 2015 passed by ADJ 1st cum Special Judge, Bokaro. Petitioners have been
summoned to face the trial for the offence under Sections 3(i), (r), (s) of
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and
Sections 323, 379 of the Indian Penal Code.
Cr.M.P. No.554 of 2020
The fact of the case is that complainant had filed Complaint Case
No.766 of 2015 before the learned Chief Judicial Magistrate, Bokaro on
25.07.2015 on which by order of the learned Chief Judicial Magistrate,
Sector-4 ST and SC P.S. Case No.10 of 2014 was registered against the
accused persons including this petitioner under Sections 341, 379/34 of the
Indian Penal Code and Section 3/4 of Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, but being introduced by the accused persons
the I.O. of the case did not record the statement of the witnesses and had
wrongly submitted the final report in the case. Further, it has been
submitted that the complainant belonged to Khata No.59, Plot No.3590,
3591, 3592, and Khata No.302, Plot No.3589, 5384 and 3593 total area of
7.60 acres which is adjacent to the land of Khata No.317, Plot No.3589, 3571
area 23 acres. On that land tribal Sarna Pooja place, grazing field, playing
ground and funeral place near Joria river are situated and the land is used
by general public. The accused persons intending to grab the land were
erecting boundary wall on the land used by public. On 22.07.2012, they
were digging the foundation and when the complainant along with some
witnesses went there and prevented them, the accused persons become
furious started abusing him in his caste and name Manjhi, untouchable and
also threatened him. They also threatened to eliminate them if they interfere
in their matter. The accused persons also attached upon the complainant
and villagers and assaulted them by fisting and by clubs and sticks. Accused
Suresh Thakur also took away Rs.2500/- from the pocket of complainant and
accused Shibu Mahatha snatched golden chain from his neck. Accused Vijay
Yadav assaulted him by stick. Protest petition by the complainant was
treated as complaint and the statement of the complainant was recorded on
oath. In his statement on oath, the complainant has stated that the accused
Suresh Thakur along with his companions Shibu Mahatha, Karim Ansari,
Mirtunjay Tiwary, Pandu @ Pant Pandey went on Khata No.307, Plot
No.3589, 5371 and started erecting the boundary, when the informant along
with Sadhin Tudu, Govind Bouri and others went and opposed them, they
abused him insulting him in his caste name and threatened to murder him.
In course of scuffle, they also took out Rs.2500/- cash and a chain from his
neck. The complainant has stated that accused persons have also lodged a
case against them regarding the same occurrence.
Cr.M.P. No.3755 of 2017
The similar fact in this Cr.M.P. are also stated as of Cr.M.P. No.554 of
2020.
Mr. Majumdar, learned senior counsel appearing for the petitioner in
Cr.M.P. No.3755 of 2017 submits that protest cum complaint petition has
been filed being aggrieved with the police report filed in connection with
Sector-IV (SC/ST) P.S. Case No.10 of 2014 alleging therein that accused
persons including the petitioners were intending to grab the public land
which is used as a Sarna Sthal and were raising boundary wall over it. He
submits that when the complainant and the witnesses went there and
opposed them, they abused and assaulted them insulting in the name of
their caste and also took out the cash from the pocket of the complainant
and chain from his neck. He submits that complainant has filed a complaint
case before the Court of learned Chief Judicial Magistrate, Bokaro on
25.07.2012 wherein the learned C.J.M. by his order directed to register the
F.I.R. under Section 156(3) of Cr.P.C. Pursuant to that, the F.I.R. being
Sector-IV (SC/ST) P.S. Case No.10 of 2014 was registered against the
petitioners and others. The Investigating Officer submitted final form in
favour of the petitioners showing the incident is not to be true. He further
submits that the petitioner in Cr.M.P. No.3755 of 2017 purchased 1 acre of
land under Khata No.317, Plot No.3895 in Mauja Narayanpur from
Madhusudan Mahto in the year 2009 and after purchasing the same,
petitioner went to the land for erecting the boundary wall and a mob led by
the complainant stopped him and they were armed with lathi, danda and
farsa and complainant also demanded extortion money of Rs.5,00,000/-.
The petitioner has lodged an F.I.R. being Pindrajora P.S. Case No.11 of 2012
on 03.02.2012 against complainant / opposite party no.2 wherein police has
submitted charge sheet against the opposite party no.2 and others on
22.06.2012 for the offence under Sections 147, 149, 447, 504 of the Indian
Penal Code. This F.I.R. is annexed as Annexure-2 series of the petition. He
further submits that the petitioner has lodged a case being Chas P.S. Case
No.232 of 2013 for the offence under Sections 147, 148, 149, 452, 341, 323,
385, 387, 380 of the Indian Penal Code against the complainant / opposite
party no.2 and others which is contained as Annexure 2/1, page 24 to the
petition. By way of drawing attention of the Court on these two F.I.Rs.
lodged by the petitioner, he submits that in retaliation to the aforesaid case
lodged by the petitioner, the present complaint case has been filed by the
complainant which is counterblast to the cases lodged by the petitioner. He
submits that factual scenario as prescribed by him, goes to show that the
allegations were made as a counterblast to the cases lodged by the
petitioner and only with a view to harass and humiliate the petitioner, the
complaint was filed and certainly mala fide intention of the complainant is
apparent and the present case falls under Category-7 of the judgment
rendered by the Hon'ble Supreme Court in the case of State Haryana
Versus Bhajan Lal reported in (1992) Supp.(1) SCC 335. He submits
that the Hon'ble Supreme Court in the case of Anjani Kumar Versus
State of Bihar and Another reported in (2008) 5 SCC 248 submits that
looking in to the judgment in the case of State Haryana Versus Bhajan
Lal, the Hon'ble Supreme Court has interfered in the case of Anjani Kumar
Versus State of Bihar and Another. He further relied in the case of
Hitesh Verma Versus State of Uttarakhand & Another reported in
(2020) 10 SCC 710 and submits that Hon'ble Supreme Court has
considered the Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act and interfered on the ground that the litigation over the
possession of land and the allegation of abuse, is against a person who
claims title over the property and allowed the petition on these terms. Mr.
Majumdar, learned senior counsel appearing for the petitioner submits that
this is a case of interference by this Court under Section 482 of the Code of
Criminal Procedure as there is abuse of process of law.
Mr. Sanjay Prasad, learned counsel appearing for the petitioner
appearing in Cr.M.P. No.554 of 2020 adopted the argument of learned
senior counsel, Mr. Majumdar. He supplemented his argument by way of
drawing the attention of this Court that Shibu Mahatha has been shown as
witness. By way of drawing attention of this Court towards Complaint Case
No.710 of 2012 filed on 25.07.2012 by the petitioner-Suresh Thakur in
Cr.M.P. No.554 of 2020, he submits that the petitioner was shown as one of
the witness in Complaint Case No.710 of 2012 and by way of only mala fide
intention, the case against the petitioner has been filed. He has adopted rest
of the argument advanced by learned senior counsel, Mr. Majumdar.
Mr. Sanjay Kumar, learned counsel appearing on behalf of opposite
party no.2 vehemently opposed the prayer and submitted that the case is
made out against the petitioner and that is why this Court may not interfere
under Section 482 Cr.P.C.
Mr. P.K. Appu, learned counsel for the State appearing in Cr.M.P.
No.554 of 2020 has also tried to justify the order.
Ms. Priya Shristha, learned counsel for the State appearing in
Cr.M.P. No. 3755 of 2017 fairly admitted the factual position however, she
tried to justify the order passed by the Court of ADJ 1st cum Special Judge,
Bokaro in Protest Petition cum C.P. Case No.766 of 2015 whereby protest
petition filed by the opposite party no.2 has been entertained.
In the light of above factual scenario, it goes to show that the
complaint filed by the opposite party no.2 on 25.07.2012 which was
converted into F.I.R. and the police was directed to investigate in the matter.
Thereafter, the police after investigation submitted final form stating that the
case is untrue. Pursuant thereto, protest petition has been filed which is
subject matter in both the petitions, Prima facie it appears that this is
counterblast by the opposite party no.2 after the action taken by the
petitioner in Pindrajora P.S. Case No.11 of 2012 dated 03.02.2012 and
subsequent case lodged as Chas P.S. Case No.232 of 2013. Thus, it is
apparent that the complaint case was filed by the opposite party no.2 later
on, when the two cases have been initiated earlier. The police has submitted
final form stating that case is not made out against the petitioner. Not only
this, the person, who has been shown as witness in Complaint Case No.710
of 2012 has been implicated by the petitioner in Cr.M.P. No.554 of 2020.
In the case of State Haryana Versus Bhajan Lal (supra), law
laid down by the Hon'ble Supreme Court at para 102 is quoted hereunder:-
"102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of
law enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following categories
of cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of cases wherein such power
should be exercised.
(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 disclose 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 uncontroverted 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."
It appears that there is some dispute with regard to land in
question of Khata No.317, Plot No.3589, 3571 in Cr.M.P. No. 3755 of 2017
and Khata No.59, Plot No.3590, 3591, 3592 in Cr.M.P. No.554 of 2020.
Petitioner in Cr.M.P. No.3755 of 2017 purchased 1 acre of land under Khata
No.317, Plot No.3895 in Mauja Narayanpur from Madhusudan Mahto and the
petitioner in Cr.M.P. No.554 of 2020 is only one of the witness of the
complaint case as indicated above.
In the case of Hitesh Verma Versus State of Uttarakhand &
Another (supra), Hon'ble Supreme Court has considered at para 16 about
the process which is quoted hereinbelow:-
16. There is a dispute about the possession of the land which is the
subject-matter of civil dispute between the parties as per Respondent 2
herself. Due to dispute, the appellant and others were not permitting
Respondent 2 to cultivate the land for the last six months. Since the
matter is regarding possession of property pending before the civil court,
any dispute arising on account of possession of the said property would
not disclose an offence under the Act unless the victim is abused,
intimidated or harassed only for the reason that she belongs to
Scheduled Caste or Scheduled Tribe.
In the case in hand, the case of Hitesh Verma(supra), is also
helping the petitioner. There is nothing on record to suggest that the offence
was committed by the petitioner only because possession belongs to
schedule caste. In para 17 in the case of Hitesh Verma, Hon'ble Supreme
Court has considered the case of Khuman Singh Versus State of M.P.
reported in (2020) 18 SCC 763. It is also not clear whether the occurrence
with regard to the caste of opposite party no.2 has been made in public or
not.
In the light of above proposition of law and factual grounds as has
been indicated above which are considered on touch stone and legal
principles set out in the cases above, there is no doubt in coming to the
conclusion that mala fides intentions were involved. The case in hand falls
under Category-7 of the judgment of the Hon'ble Supreme Court in the case
of State Haryana Versus Bhajan Lal (supra) and to allow to continue the
criminal proceeding against the petitioner, would amount to abuse of
process of law.
Criminal proceeding in connection with Protest Petition cum C.P.
Case No.766 of 2015 arising out of S.C./S.T. Case No.28 of 2017 pending in
the Court of Additional District Judge-1st cum Special Judge, Bokaro, is
hereby quashed so far as the petitioners- Shibu Mahatha @ Shiv Shanker
Mahtha and Suresh Thakur are concerned.
Accordingly, this criminal miscellaneous petition is disposed of.
Interlocutory application, if any, is also disposed of.
(Sanjay Kumar Dwivedi, J.)
Anit
