Jharkhand High Court
Manoj Kumar Dalmiya vs The State Of Jharkhand on 20 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1226 of 2018
Manoj Kumar Dalmiya, aged about 47 years, son of Late Om Prakash
Dalmiya, Resident of Bhandardih, Near Dalmiya Petrol Pump, P.O.-
Giridih, P.S.-Giridih Town, District-Giridih.
..... ... Petitioner
Versus
1. The State of Jharkhand.
2. Sufi Mansoor Ali Khan, S/o Late Habib Khan, R/o of Sufi Ashram,
Bhandasidih, P.S.-Giridih (T), District-Giridih.
..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Anil Kumar, Sr. Advocate
For the State : Mr. Suraj Verma, Spl.P.P.
For the O.P. No. 2 : Mr. Nagmani Tiwari, Advocate.
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04/ 20.10.2021 Heard Mr. Anil Kumar, learned senior counsel appearing for
the petitioner, Mr. Suraj Verma, learned Spl.P.P. for the State and Mr.
Nagmani Tiwari, learned counsel appearing for 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. This criminal miscellaneous petition has been filed for
quashing of the entire criminal proceeding in connection with Complaint
Case No. 1596 of 2016, including the order dated 20.01.2017, whereby,
the cognizance of the offence under Sections 323 and 379 of the Indian
Penal Code has been taken against the petitioner, now pending in the
Court of learned Chief Judicial Magistrate, Giridih.
4. The complaint was filed stating that on 05.11.2016 at 08.30
P.M., the persons named in the complaint petition as accused came having
common intention and armed with lathi, rod and revolver and started
abusing the complainant and asked about the whereabout of the Chottu
Khan and at the same time threatened for dire consequences. It is further
alleged that upon this the complainant and his daughter objected to this
than the accused persons started beating him and her daughter and
accused namely Manoj Kumar Dalmiya started misbehaving with the
complainant's daughter and there after put her down on the land and
started pressing her neck and during this he snatched the golden chain of
Munni Khatoon and further put revolver on her head and thereby
threatened her and took Rs. 2,00,000/- (two lakhs) from her possession. It
is further alleged that while going back they broke the glass of the bus
owned by the husband of Munni Khatoon and at the same time also
threatened for the dire consequences.
5. Learned senior counsel appearing for the petitioner submits
that the entire allegations leveled against the petitioner is false. He
submits that for last so many years enmity as well as land disputes were
going on between the petitioner and the family of the complainant
including the complainant. He further submits that due to ulterior motive,
this false and fabricated case has been lodged against the petitioner. He
also submits that the complaint was filed, but the same was not supported
by any affidavit, which is against the judgment rendered by the Hon'ble
Supreme Court in the case of Mrs. Priyanka Srivastava & Anr. Versus
State of U.P. & Ors., reported in (2015) 6 SCC 287.
6. Learned senior counsel further submits that the petitioner has
lodged Giridih (Town) P.S. Case No. 307 of 2016 against the complainant
on 05.11.2016 and just to save their skin from this case the instant false
and fabricated complaint case has been filed against the petitioner. He
further submits that the complainant has filed the complaint, being
Complaint Case No. 1596 of 2016 and Eviction Suit No. 08 of 2004,
which was dismissed and against the said dismissal, complainant filed
Eviction Appeal No. 03 of 2010, but the same was also dismissed vide
order dated 21.04.2012. The said judgment is available on record, which
has been filed along with the supplementary affidavit filed by the
petitioner. Learned senior counsel further submits that with this malicious
allegation, the complainant through one A.K. Pathak, had filed W.P.(P.I.L)
No. 3042 of 2004, but the said PIL was also dismissed. He submits that
this malicious steps are against the mandate of law.
7. To buttress his argument, learned senior counsel has relied
upon a judgment of Hon'ble Supreme Court in the case of M/s. Indian
Oil Corporation Versus M/s NEPC India Ltd. & Ors. reported in (2006)
6 SCC 736. Para-12 of the said judgment is quoted hereinbelow:-
"12. The principles relating to exercise of jurisdiction
under Section 482 of the Code of Criminal Procedure
to quash complaints and criminal proceedings have
been stated and reiterated by this Court in several
decisions. To mention a few--Madhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre1, State of
Haryana v. Bhajan Lal2, Rupan Deol Bajaj v. Kanwar
Pal Singh Gill3, Central Bureau of Investigation v.
Duncans Agro Industries Ltd.4, State of Bihar
v. Rajendra Agrawalla5, Rajesh Bajaj v. State NCT
of Delhi6, Medchl Chemicals & Pharma (P) Ltd.
v. Biological E. Ltd.7, Hridaya Ranjan Prasad Verma
v. State of Bihar8, M. Krishnan v. Vijay Singh9 and
Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful
Haque10. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the
allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be
examined as a whole, but without examining the
merits of the allegations. Neither a detailed inquiry
nor a meticulous analysis of the material nor an
assessment of the reliability or genuineness of the
allegations in the complaint, is warranted while
examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when the
criminal proceeding is found to have been initiated
with mala fides/malice for wreaking vengeance or
to cause harm, or where the allegations are absurd
and inherently improbable.
(iii) The power to quash shall not, however, be used
to stifle or scuttle a legitimate prosecution. The
power should be used sparingly and with abundant
caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid
in the complaint, merely on the ground that a few
ingredients have not been stated in detail, the
proceedings should not be quashed. Quashing of the
complaint is warranted only where the complaint is
so bereft of even the basic facts which are
absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a
civil wrong; or (b) purely a criminal offence; or (c)
a civil wrong as also a criminal offence. A
commercial transaction or a contractual dispute,
apart from furnishing a cause of action for seeking
remedy in civil law, may also involve a criminal
offence. As the nature and scope of a civil
proceeding are different from a criminal
proceeding, the mere fact that the complaint relates
to a commercial transaction or breach of contract,
for which a civil remedy is available or has been
availed, is not by itself a ground to quash
the criminal proceedings. The test is whether the
allegations in the complaint disclose a criminal
offence or not."
8. In view of the above, learned senior counsel submits that the
order, taking cognizance is bad in law and cryptic in nature and there is no
disclosure of prima facie case against the petitioner. On this ground, he
submits that entire criminal proceeding is malicious and fit to be quashed.
9. Learned counsel appearing for the O.P. No. 2 submits that on
solemn affirmation the complainant had made the allegation in the
complaint against the petitioner and there is material to proceed against
the petitioner.
10. Mr. Suraj Verma, learned Spl.P.P, appearing for the State
submits that the judgment rendered by the Hon'ble Apex Court in the
Case of Mrs. Priyanka Srivastava & Anr. (Supra) is of no help, in view
of the facts and circumstances of the present case.
11. It is an admitted fact that the complainant has filed the
complaint, being Complaint Case No. 1596 of 2016 and Eviction Suit No.
08 of 2004, which was dismissed and against the said dismissal
complainant filed Eviction Appeal No. 03 of 2010, but the same was also
dismissed vide order dated 21.04.2012. The petitioner has lodged Giridih
(Town) P.S. Case No. 307 of 2016 against the complainant on 05.11.2016
and just after three days i.e. on 08.11.2016 the complainant has filed the
present Complaint Case No. 1596 of 2016, which is the subject matter of
this criminal miscellaneous petition. The dispute was also the subject
matter before the Division Bench in the public interest litigation, being
W.P.(P.I.L) No. 3042 of 2004, but the said PIL was also dismissed vide
order dated 21.04.2006.
12. In view of the aforesaid facts, it appears that the present
complaint has been filed by the complainant in retaliation of their earlier
proceedings, in which, the complainant has lost. From the facts
constituted by the petitioner, it appears that this aspect of the matter has
been considered in the case of M/s. Indian Oil Corporation (Supra). It is
also incumbent upon the learned Magistrate to look into as to whether any
affidavit in support of allegation has been filed or not, as stated in the case
of Mrs. Priyanka Srivastava & Anr. (Supra).
13. On perusal of the cognizance order, it transpires that it is not
in accordance with the terms of Sections 203 and 204 of Cr.P.C. Sub-
Section (1) of Section 204 stipulates that if in the opinion of a Magistrate
taking cognizance of an offence, there is sufficient ground for
proceeding, he shall issue the summons for the attendance of the accused
or he may issue a warrant, if he thinks fit in a case, has been envisaged
in Sections 204(1)(a) and 204(1)(b) of the Cr.P.C.
14. On perusal of the aforesaid Sections, it is quite clear that
there is no bar upon the Magistrate to take cognizance and proceed in
accordance with law. The provision of law is mentioned in Section 204
Cr.P.C. whereas in Section 190 of the Cr.P.C., the Magistrate has
empowered to summon the accused persons. Summoning of an accused in
a criminal case is thoroughly explained in the judgment of the Hon'ble
Supreme Court in the case of Ramesh Gandhi Versus State of Bihar &
Anr., reported in (1998) 5 SCC 749. Para-28 thereof reads as under:-
"28. Summoning of an accused in a criminal case is
a serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect that
he has applied his mind to the facts of the case and
the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the
evidence both oral and documentary in support
thereof and would that be sufficient for the
complainant to succeed in bringing charge home to
the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary
evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence
brought on record and may even himself put
questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused."
15. The similar provision has been reported in the case of
Ramdev Food Products Private Limited Versus State of Gujarat,
reported in (2015) 6 SCC 439.
16. In view of the above facts, the summoning order could not be
issued casually and in a mechanical manner. On perusal of the cognizance
order, it transpires that it was in the most casual manner without recording
any satisfaction of the learned Magistrate and in absence of minimum
material available on record, the said order has been passed. It also
transpires that the present complaint has been filed maliciously to harass
the petitioner, which is an abuse of the process of law.
17. Accordingly, the entire criminal proceeding in connection
with Complaint Case No. 1596 of 2016 including the order dated
20.01.2017, whereby, the cognizance of the offence under Sections 323
and 379 of the Indian Penal Code has been taken against the petitioner,
now pending in the Court of learned Chief Judicial Magistrate, Giridih,
are hereby, quashed.
18. This criminal miscellaneous petition is, accordingly, allowed
and disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
