Jharkhand High Court

Ajay Prasad vs The State Of Jharkhand on 30 June, 2021

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2116 of 2013

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Ajay Prasad, son of Kauleshwar Sao, resident of village Kersai, PO Kersai, PS and District Simdega ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Poonam Tirkey, daughter of late Chandra Nath Tirkey, resident of village Kathitand, PO and PS Ratu, District Ranchi ...... Opposite Parties Versus Cr.M.P. No. 620 of 2013

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Manoj Prasad, son of Kauleshwar Sao, resident of village Kersai, PO Kersai, PS and District Simdega ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Punam Tirkey, daughter of late Chandra Nath Tirkey, resident of village Kathitand, PO and PS Ratu, District Ranchi ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Abhishek Prasad, Advocate For the O.P.No.2 :- Mrs. Jasvinder Mazumdar, Advocate

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3/30.06.2021 Heard Mr. Nilesh Kumar, the learned counsel for the

petitioner and Mrs. Jasvinder Mazumdar, the learned counsel for the

O.P.No.2.

2. These 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.

3. In both the criminal miscellaneous petitions, common

question of fact are involved and that is why both the petitions have

been heard together. In Cr. M.P. No.2116 of 2013, Ajay Prasad is the

petitioner and in Cr.M.P. No.620 of 2013, Manoj Prasad is the petitioner

who are brothers. In both the petitions, the petitioners have prayed for

quashing the entire criminal proceeding in connection with Complaint

Case No.1518 of 2012 including the order dated 08.01.2013 passed by

learned Judicial Magistrate, Ranchi whereby cognizance under section

379 IPC and section 3(x) of Scheduled Caste/Scheduled Tribe (Prevention

of Attrocity) Act, 1989 have been taken against the petitioners. On the

basis of written report of O.P.No.2, First Information Report was

instituted vide SC/ST Ranchi (Sadar) P.S. Case No.44 of 2009 for the

offence under sections 379, 448, 504 IPC and section 3(x) of Scheduled

Caste/Scheduled Tribe (Prevention of Attrocity) Act, 1989 corresponding

to G.R.Case No.3014 of 2009 in which it was alleged that the petitioners

who happened to be brothers was known to the informant. Ajay Prasad

had removed Rs.8,000/- and one gold ear ring from the house of the

informant and even after the assurance, the same has not been returned

to her. On 14.02.2019, she went to the house of Ajay Prasad for demand

of her cash of Rs.8,000/- and gold ear ring but it has been alleged that

Ajay Prasad and his brother Manoj Prasad abused her and threatened her

with dire consequence. On such written report, the FIR was registered.

The matter was investigated by the police and after investigation, vide

Final Report No.14/11 dated 28.02.2011, the police has submitted Final

Form in favour of the petitioners with the statement that no case under

sections 379 and 448 IPC has been made out against the petitioners and

no case under section 3(x) of Scheduled Caste/Scheduled Tribe

(Prevention of Attrocity) Act, 1989 is made out and in the Final Form it

has been mentioned that false allegation has been made out. After

submission of the Final Form, the O.P.No.2 has filed the protest petition

in the court below and pursuant thereto the court below has taken the

cognizance under Section 379 and section 3(x) of Scheduled

Caste/Scheduled Tribe (Prevention of Attrocity) Act, 1989. Aggrieved with

this, the petitioners have filed these two petitions.

4. The learned counsel appearing for the petitioners has

assailed the cognizance order on the ground that the police has already

investigated in detail and thereafter Final Form has been submitted only

on the basis of protest petition the court below has taken the cognizance.

He submits that cognizance order is also not in consonance with section

190 Cr.PC. To buttress his argument, he relied in the case of "Amresh

Kumar Dhiraj v. State of Bihar and Another" [Cr.M.P. No.2744 of 2013]

(para-25). On this ground, he submits that both the petitions are fit to be

allowed.

5. Per contra, Mrs. Jasvinder Mazumdar, the learned counsel

for the O.P.No.2 vehemently opposed the prayer of the petitioners and

submits that at this stage the Magistrate is only required to look into the

solemn affirmation and by way of placing solemn affirmation she submits

that prima facie the case is made out and accordingly the court below

has taken cognizance. There is no illegality in the impugned order and at

this stage this Court may not interfere with the cognizance order. She

further submits that in enquiry further witnesses have supported the

version of the informant.

6. On perusal of the impugned order dated 08.01.2013

whereby the cognizance under section 379 IPC and section 3(x) of

Scheduled Caste/Scheduled Tribe (Prevention of Attrocity) Act, 1989 has

been taken against the petitioners, it transpires that there is no reason

assigned as to why the court below has differed with the Final Form. It is

well settled provision of law that for issuing process, the court is required

to apply his mind. In "S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla"

reported in (2005) 8 SCC 89, the Hon'ble Supreme Court in paragraph

no.5 of the said judgment has held as under:

"5. Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words "after considering" and "the Magistrate is of opinion that there is no sufficient ground for proceeding". These words suggest that the

Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to them on the basis of the complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima facie case to proceed. This, in other words, means that a complaint must contain material to enable the Magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far- reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words "if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding". The words "sufficient ground for proceeding" again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge- sheet do not constitute an offence against a person, the complaint is liable to be dismissed."

7. In case of "M/s GHCL Employees Stock Option Trust v. M/s

India Infoline Limited" reported in (2013) 2 Est.India Cr.Case 326 SC, the

Hon'ble Supreme Court has held that before issuing the summons, the

court has to record its satisfaction that prima facie case is made out

against the accused. In both the circumstances, the court has to apply

his mind. In case of " Dy. Chief Controller of Imports & Exports v.

Roshanlal Agarwal" reported in (2003) 4 SCC 139, the Hon'ble Supreme

Court has held in para-9 of the said judgment, as under:

"9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the

process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B.2 it was held as follows: (SCC p. 749, para 6) The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order."

8. There is requirement of opinion to proceed further against

the accused which requires to be reflected in the order itself. In the case

of "Pepsi Foods Ltd. and Others v. Special Judicial Magistrate and

Others", reported in (1998) 5 SCC 749, the Hon'ble Supreme Court has

held that to set criminal proceeding in motion is a serious matter which

requires to be looked into minutely. In the order taking cognizance, there

is no discussion as to what material is there against the petitioners and

it is not that the complainant has to bring only one or two witnesses to

support his allegation to have the criminal law into motion. There is no

mention of any witness as to what they have stated against the

petitioners. Thus, no prima facie case under section 379 IPC is proved

against the petitioners which has been submitted in the Final Form

submitted by the police.

9. So far as Scheduled Caste/ Scheduled Tribe (Prevention of

Attrocity) Act is concerned, the statement of object and reason of

enactment of that Act has been considered by the Hon'ble Supreme

Court in the case of "Hitesh Verma v. State of Uttarakhand" reported in

(2020) 10 SCC 710. Paras- 8, 10, 19 and 20 of the said judgment are as

under:

"8. Against the backdrop of these facts, it is pertinent to refer to the Statement of

Objects and Reasons of enactment of the Act. It is provided as under:

"Statement of Objects and Reasons.--

Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.

2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc. they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Castes persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Penal Code, 1860 have been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non- Scheduled Tribes has, therefore, become necessary."

10. The Act was enacted to improve the social economic conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities, humiliations and harassment. They have been deprived of life and property as well. The object of the Act is thus to punish the violators who inflict indignities,

humiliations and harassment and commit the offence as defined under Section 3 of the Act. The Act is thus intended to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular community.

19. This Court in a judgment reported as Subhash Kashinath Mahajan v. State of Maharashtra6 issued certain directions in respect of investigations required to be conducted under the Act. In a review filed by the Union against the said judgment, this Court in a judgment reported as Union of India v. State of Maharashtra reviewed the directions issued by this Court and held that if there is a false and unsubstantiated FIR, the proceedings under Section 482 of the Code can be invoked. The Court held as under:

(Union of India case, SCC p. 797, para 52) "52. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care of in proceeding under Section 482 CrPC."

20. Later, while examining the constitutionality of the provisions of the amending Act (Central Act 27 of 2018), this Court in a judgment reported as Prathvi Raj Chauhan v. Union of India held that proceedings can be quashed under Section 482 of the Code. It was held as under: (SCC p. 751, para 12) "12. The Court can, in exceptional cases, exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled

parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised."

10. The ingredients of place in public view distinguished from

public place has been discussed in the case mentioned above. The

allegation against the petitioners are not fulfilling the ingredients of

public view and public place and accordingly, section 3(x) of Scheduled

Caste/Scheduled Tribe (Prevention of Attrocity) Act, 1989 is not attracted

in the case in hand.

11. In view of the above discussions, the order dated

08.01.2013 passed by learned Judicial Magistrate, Ranchi will not survive.

12. Accordingly, the order taking cognizance including the entire

criminal proceeding in connection with Complaint Case No.1518 of 2012

is hereby quashed.