Syed Sadru Zama @ Syed Sadru @ Sadru ... vs State Of Jharkhand
2021 Latest Caselaw 3568 Jhar

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No.1511 of 2014

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1.Syed Sadru Zama @ Syed Sadru @ Sadru Jama, son of late Samsul Zoha

2.Sahbaz Zama, son of Syed Sadru Zama @ Syed Sadru Jama

3.Sajrunnisha @ Sajrul Nisha, wife of Syed Sadru Zama @ Syed Sadrujama All residents of Khaltoli, Bara Bazar, PO-Hazaribagh, PS-Sadar, District Hazaribagh ..... Petitioners

-- Versus --

1.State of Jharkhand

2.Baneshwar Pasawan, son of lat Moti Paswan, resident of Mohalla- Khirgaon, PO-Hazaribagh, PS-Sadar, District-Hazaribag ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Ashim Kumar Sahani, Advocate For the State :- Mr. P.D. Agarwal, Spl.P.P For O.P.No.2 :- Mr. Sarju Prasad, Advocate

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5/23.09.2021 Heard Mr. Ashim Kumar Sahani, the learned counsel appearing on behalf of the petitioners, Mr. Sarju Prasad, the learned counsel appearing on behalf of the O.P.No.2 and Mr. P.D. Agarwal, the learned counsel appearing on behalf of the State.

2. The petitioners have filed this petition for quashing the order taking cognizance dated 28.02.2014, passed by learned Judicial Magistrate, 1st Class, Hazaribagh in Protest-cum- Complaint petition No.1748 of 2012 whereby by way of disagreeing with the Final Form submitted by the police after investigation the order of cognizance has been taken under section 341, 323, 427 and 452 IPC read with Section 3(1)(x)(xi)(xv) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act, 1989. The First Information Report was lodged on the following terms:

"That, the allegations contained in the First Information Report inter alia is that the petitioner no.1 filed a Civil Suit being Title Suit No.125 of 1989 against the complainant and others which was decreed ex-parte due to lack of proper prosecution and thereafter the petitioners used to stop construction work and in pursuance of such decree, the petitioner no.1 got delivery of possession through Execution Case. On 08.04.2012, the accused persons alleged to have abused the complainant and in spite of information, the police did not take any step

rather on 23.04.2012 the accused persons armed with lathi etc came to the complainant and assaulted him with fists and slaps."

3. Ms. Sahani, the learned counsel for the petitioners submits that after investigation the police has submitted Final Form on 23.06.2012 mentioning therein that due to previous Civil Suit, the case was lodged and the matter relates to civil dispute. According to him, on 19.10.2012, the opposite party no.2 filed a protest cum complaint petition against the petitioners which was registered as Protest-cum-Complaint petition No.1748 of 2012. He submits that the land in question was the subject matter of Title Suit being Title Suit No.125 of 1989 and possession of that was provided to the petitioners pursuant to the execution of the said decree by the concerned court. He submits that in the protest cum complaint petition also so far as SC and ST (Prevention of Atrocities) Act, 1989 is concerned, the ingredients under those sections are not made out. He refers to paragraph nos. 4 and 5 of the protest petition and submits that it was within the wall of the complainant. He submits that for a civil dispute unnecessarily the petitioners have been dragged in the criminal proceeding. According to him, only by way of adducing 2 or 3 witnesses, putting the criminal proceeding in motion is a serious thing.

4. Mr. Sarju Prasad, the learned counsel appearing on behalf of the Opposite Party no.2 submits that after the protest petition was filed the learned court has considered the evidence adduced by the complainant and thereafter has taken cognizance. He submits that it is well settled that once the Final Form has been submitted and if the Magistrate has come to the conclusion that the case is made out, the Magistrate is empowered to move in accordance with law and accordingly, there is no illegality in the impugned order.

5. Mr. Agarwal, the learned counsel appearing on behalf of the respondent State submits that it is well within the domain of the Magistrate to proceed further if he comes to a conclusion that there is prima facie case to proceed against the petitioners.

6. In view of the above facts, the Court has

examined the F.I.R as well as complaint petition which was filed after submission of the Final Form. In the Final Form, the police after investigation has submitted that this is arising out of a civil case and the petitioners are in possession pursuant to the Title Suit decree passed by the competent court. Thereafter, the protest petition was filed. In paragraph no.5 of the complaint petition, it is disclosed that the petitioners have reached to the door of the complainant. Thus, prima facie it appears that the allegation was within the four corners of a house so far as the ingredients of Section 3(1)(x)(xi)(xv) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act, 1989 is concerned. Recently, the Hon'ble Supreme Court has considered this aspect in the case of "Hitesh Verma v. The State of Uttarakhand and Anr." reported in (2020) 10 SCC 710, and the relevant paragraph nos.15, 16, 17 and 18 of the said judgment are quoted herein below:

"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.

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.

17. In another judgment reported as Khuman Singh v. State of M.P., this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest

that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under:

"15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar" Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."

18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out."

7. In the judgment rendered in the case of "Prathvi Raj Chauhan v. Union of India and Others" reported in (2020) 4 SCC 727, it has been held that the proceeding can be quashed under section 482 of the Code and it is held in paragraph no.12 of the said judgment, which is quoted hereinbelow :

"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."

8. The law is well settled with regard to material under section 202 Cr.P.C which has been considered by the Hon'ble Supreme Court in the case of "Swaraj Thackeray v. State of Jharkhand and Ors" reported in (2008) CriLJ 3780. Paragraph no.7 of the said judgment is quoted hereinbelow:

"7. From the impugned order, I find that the learned Magistrate after considering the allegations made in the complaint petition and the materials adduced during enquiry under Section 202, Cr.P.C found prima-facie case made out for commission of the offence under section 153-A, 153-B and 504 of the Indian Penal Code against the petitioner Swaraj

Thackeray @ Raj Thakeray and, thereafter directed the complainant to file requisite for issuance of process. At the stage of taking cognizance a detailed order discussing the evidence in detail is not required to be passed by the Magistrate. The order taking cognizance but should show that the Magistrate has applied his mind before taking cognizance and from the impugned order it appears that the Magistrate after applying his mind has taken cognizance and, therefore, it cannot be said that the impugned order suffers from non-application of mind.

9. Subsequently, the Hon'ble Supreme Court has held in the case of "Dy. Chief Controller of Imports and Exports v. Roshanlal Agarwal and Others" reported in (2003) 4 SCC 139 at paragraph no.9, which is quoted below :

"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. 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.

10. It is well settled that no detailed order is required for passing any order for summoning the accused but in a case where Final Form has already been submitted in favour of the accused and the Magistrate is intending to proceed on a complaint petition, he is required to make reasons of differing with the Final Form which has not been done in the case. Prima facie, it appears that the complaint petition is a retaliatory one as the petitioners are in possession of the land/building in question pursuant to the civil suit and after lost of the suit, this criminal proceeding has been initiated against the petitioners. In the present case, the learned court has only on the basis of witnesses

examined by the complainant has taken cognizance. It is well settled that merely by way of adducing 2-3 witnesses before the court, case cannot be true. Putting the criminal proceeding in motion is a serious thing as held in the case of "Pepsi Foods Ltd. and Others v. Special Judicial Magistrate and Others", reported in (1998) 5 SCC 749 in which 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.

11. Accordingly, the order taking cognizance dated 28.02.2014, passed by learned Judicial Magistrate, 1st Class, Hazaribagh in Protest-cum-Complaint petition No.1748 of 2012 including the entire criminal proceeding arising out of Protest- cum-Complaint petition No.1748 of 2012, pending in the court of learned Judicial Magistrate, 1st Class, Hazaribagh is hereby quashed.

12. The instant petition [Cr.M.P. No.1511 of 2014] stands allowed and disposed of.

( Sanjay Kumar Dwivedi, J) SI/