Sunny Kumar vs The State Of Jharkhand Through The ...
2022 Latest Caselaw 1536 Jhar

                                       1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(Cr.) 187 of 2021

      Sunny Kumar, aged about 28 years, son of Pramod Kumar Sahu,
      resident of District Mining Office, Seraikela, P.O. and P.S. Seraikela,
      District-Seraikela-Kharsawan, Jharkhand
                                                    ....  ...Petitioner
                                  Versus

          1. The State of Jharkhand through the Director General of Police,
             Govt. of Jharkhand, Ranchi

          2. The Superintendent of Police, Seraikella-Kharsawan

          3. The Sub Inspector cum Investigating Officer, Seraikella Police
             Station, Seraikella-Kharsawan

          4. Pinayak Dubey, aged about 47 years, son of late Girja Shankar
             Dubey, resident of W. No. 1, Hansudi, P.O. and P.S. Seraikella,
             District Seraikella-Kharsawan, Jharkhand

                                                     ..... ...Opp. Parties
                       --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Ajit Kumar, Sr. Advocate Mr. Rahul Kumar, Advocate Ms. Aparajita Bhardwaj, Advocate Ms. Apporva Singh, Advocate

For the State : Mr. Prabir Kumar Chatterjee, Spl.P.P. For the O.P. No. 4 : Mr. Indrajit Sinha, Advocate : Mr. Vikash Kumar, Advocate ..........

07/ Dated:-18.04.2022

1. Heard Mr. Ajit Kumar, learned senior counsel for the

petitioner assisted by Mr. Rahul Kumar, learned counsel for the

petitioner, Mr. Prabir Kumar Chatterjee, learned counsel for the

State and Mr. Indrajit Sinha, assisted by Mr. Vikash Kumar, learned

counsel for the O.P. No. 4.

2. This petition has been filed for quashing of entire

criminal proceedings including the F.I.R. in connection with

Seraikella P.S. Case No. 70 of 2021, pending in the Court of learned

Chief Judicial Magistrate, Seraikella-Kharsawan.

3. The O.P. No. 4 has filed C.C. Case No. 411/2021

alleging therein that the complainant is a reputed businessmen and

owner of Tractors bearing Registration (i) JH22A-4673 and its trolley

No. JH22A-9918 and (ii) JH 22A-9756 and its Trolley No. JH22A-

4630 and is also a government registered contractor.

It is further alleged that on or before 03.03.2021 the

complainant was peacefully engaged in transportation of permitted

goods for agriculture purpose.

It is further alleged that on 03.03.2021 at about 8.00 A.M.

the complainant was informed by his driver that his vehicle loaded

with filling soil was taken to Seraikella Police Station forcibly and

when the complainant reached Seraikella Police Station, he was

informed by the Officer-in-Charge that the vehicle has been kept

under the seizure and custody of District Mining Officer, Seraikella-

Kharsawan.

It is further alleged that the complainant had also tried to

meet the District Mining Officer but the District Mining Officer

denied to meet him and conveyed the message to get the penalty

submitted as he has to achieve his target for the financial year,

2020-21.

It is further alleged that on 05.03.2021 the complainant

again went to the office of the District Mining Officer and tried to

convince him that the material loaded in the vehicle is under

permitted activity but the District Mining Officer used filthy

language and told the complainant that his vehicles were being

used in illegal mining and transporting.

It is further alleged that the District Mining Officer imposed

a penalty of Rs. 10,000/- upon each vehicle and the complainant

agreed to pay Rs. 10,000/- for release of the vehicles, however,

release order was issued for release of the vehicle bearing

Registration No. JH22A-4673, Trolley No. JH22A-9918.

It is further alleged that after release of the first vehicle,

the complainant requested to generate another release order for the

other vehicle upon which the District Mining Officer denied and

asked for a bribe of Rs. 50,000/- for releasing the vehicle. The

amount was beyond the limit of the complainant so he showed his

inability to pay the same.

It is further alleged that on 25.03.2021, the complainant

again visited the office and requested the petitioner to release the

other vehicle, however, the petitioner became aggressive and

slapped him and even threatened him to implicate in a false case.

It is further alleged that no offence has been committed

by the complainant and his vehicles were carrying permitted goods

but vehicle with Registration No. JH22A-9756 and its Trolley JH22A-

4630 has been detained by the petitioner without any reason.

4. Mr. Ajit Kumar, learned senior counsel for the petitioner

submits that while discharging his official duty the petitioner seized

two tractors along with vehicle of the O.P. No. 4 in which illegal

mining was being done by the O.P. No. 4. He further submits that

Sub Rule 5 of Rule 54 of Jharkhand Minor Mineral Concession Rule,

2004 prescribes that for the first offence offence penalty of Rs.

10,000/- shall be imposed, for the second offence penalty of Rs.

50,000/- and for the third offence penalty of Rs. 1,00,000/- shall be

imposed. He further submits that so far as first tractor in question is

concerned on the deposition of Rs. 10,000/- on misconception that

tractor was directed to be released and lateron the office of the

petitioner found that the said tractor which was released, was

earlier involved in illegal transportation of sand. He further submits

that for the first offence F.I.R. being Seraikella P.S. Case No.

104/2019 was registered annexed as Annexure-2 to this petition. He

further submits that first F.I.R. with regard to first vehicle was

registered by this petitioner. He further submits that second vehicle

was also involved in illegal mining and transportation for which

F.I.R. being Seraikella P.S. Case No. 82/2020 was registered

annexed as Annexure-3 to this petition. He further submits that this

F.I.R. was also lodged by this petitioner. He further submits that the

petitioner has directed to deposit as penalty a sum of Rs. 50,000/-

for the second vehicle in question as it was second offence. He

further submits that for the first vehicle Rs. 40,000/- was further

directed to deposit as the vehicle in question was involved in illegal

mining on earlier occasion also. He further submits that the learned

court has referred the complaint under section 156(3) Cr.P.C. for

registering F.I.R. To elaborate his argument, learned senior counsel

for the petitioner submits that referring the complaint under section

156(3) Cr.P.C. is mechanical one which is against the mandate of

law laid down in the judgment of the Hon'ble Supreme Court in the

case of " Priyanka Srivastava & Another Vs. State of Uttar

Pradesh & Another" reported in (2015) 6 SCC 287. Relying on

para 27, 29 and 30 of the said judgment, learned senior counsel for

the petitioner submits that entire allegation is malicious and

malafide against the petitioner and in view of the fact this Court is

competent to quash entire criminal proceeding including F.I.R. To

buttress this argument, he relied in the case of " M.N. Ojha &

Others Vs. Alok Kumar Srivastav & Another" reported in

(2009) 9 SCC 682. He relied on para 20, 21, 22 and 30 of the said

judgement. Lastly, learned senior counsel for the petitioner submits

that in view of section 27 of the Mines and Mineral (Development

and Regulation) Act, 1957, the petitioner is protected if the action is

taken in good faith.

5. Per contra, Mr. Indrajit Sinha, learned counsel for the

O.P. No. 4 submits that in para 9 of the complaint, there is

allegation of slapping upon the complainant. He further submits that

this is subject matter of the trial and at this stage, this Court may

not interfere with. By way of referring to reference under section

156(3) Cr.P.C., he submits that this is not an order and merely the

complaint has been referred to the police which is not under

challenge. He further submits that Sub Rule 5 of Rule 54 of the

Rule speaks of bond paper and there is no question of depositing

the money. He further submits that complaint was filed for taking

cognizance and for reference under section 156(3) Cr.P.C. which was

referred on the prayer of the complainant. He further submits that

there is no compliance of section 54 of the Rule. He further submits

that the case of "Priyanka Srivastava" (supra) is different. He

further submits that the case which has been relied by the learned

senior counsel for the petitioner, in that case after investigation

cognizance was taken thereafter the Court interfered with and in

this case only F.I.R. is under challenge. He further submits that at

this stage this Court may not interfere as investigation is still going

on.

6. Mr. Prabir Kumar Chatterjee, learned counsel for the

State submits that after seizure of the vehicles the informant filed

for release of his two vehicles. The informant deposited the penalty

of Rs. 10,000/- as token was generated for his one vehicle, so far

the second vehicle is concerned, the petitioner did not generate

token for depositing the fine whatsoever so the informant could not

deposit the fine. He further submits that the vehicle was seized and

kept and at this stage, this court may not interfere with.

7. In view of the aforesaid facts and considering the

submissions of the learned counsel for the parties and looking to the

complaint petition, it transpires that for non-release of the two

vehicles along with trolley, complaint has been filed. It is an

admitted fact that the case is arising out of complaint which was

referred under section 156(3) Cr.P.C. Reference under section

156(3) Cr.P.C. is not a separate order as merely the petition has

been referred. The Hon'ble Supreme Court in the case of "Priyanka

Srivastava" (supra) held that power under section 156(3) Cr.P.C.

warrants application of mind. In that case the Hon'ble Supreme

Court has dealt with several judgments and law in para 27, 29 and

31. In para 27 of the said judgement, the Hon'ble Supreme Court

has held that the learned Magistrate has to remain vigilant with

regard to the allegations and the nature of allegations and not to

issue directions without proper application of mind. Section 156(3)

Cr.P.C. applications are to be supported by an affidavit and purpose

of filing such petition even is abuse of process of law it has become

common in the State. The manner of affidavit has been disclosed

under section 297 Cr.P.C. There was no proper provocation of

Section 154 Cr.P.C. In the complaint it has been prayed to send the

complaint to the police station under section 156(3) Cr.P.C. for

institution of F.I.R. Thus, learned C.J.M. sent the complaint to the

police station for investigation under section 156(3) Cr.P.C.

Registering the F.I.R. is bad in law. This judgment of the Hon'ble

Supreme Court in "Priyanka Srivastava" (supra) has been

followed in "Bikram Johar Vs. State of Uttar Pradesh &

Another" reported in (2019) 14 SCC 207. Section 27 of the

Mines and Minerals (Development and Regulation) Act, 1957 speaks

protection for the action taken. For ready reference of the case

Section 27 of the Act is quoted here-in-below:-

"27. Protection of action taken in good faith:- No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act."

8. The petitioner was discharging the official duty while

he seized two vehicles along with trolley as disclosed in the

complaint petition. Sub Rule 5 of Rule 54 of the Act stipulates that

for the first offence penalty of Rs. 10,000/- shall be imposed, for the

second offence penalty of Rs. 50,000/- shall be imposed and for the

3rd offence penalty of Rs. 1,00,000/- shall be imposed. It is an

admitted fact that two F.I.R. being Seraikella P.S. Case No.

104/2019 and Seraikella P.S. Case No. 82 of 2020 were lodged by

the petitioner. The vehicle in question was involved in illegal mining.

In misconception the first vehicle was released. The petitioner was

well-within jurisdiction to demand a sum of Rs. 40,000/- for the first

vehicle so far as second vehicle is concerned, the complainant has

not deposited the amount and filed the complaint. The argument of

Mr. Indrajit Sinha, learned counsel for the O.P. No. 4 with regard to

quashing of F.I.R. is not indispute. It is well settled that if the

allegations are disclosed in the F.I.R., the court sitting under section

482 Cr.P.C is not required to roam into and come to the conclusion

that case is not made out but at the same time if going through the

F.I.R. or the complaint, the Court comes to the conclusion that

materials in complaint not disclosing the offence the court can

interfere. Looking into the complaint petition and entire allegation

and considering section 27 of the Act and in mechanical way the

complaint has been sent under section 156(3) Cr.P.C., the Court can

interfere in the matter. The petitioner was discharging his official

duty and was protected under section 27 of the Act. Reference may

be made to the case of "State of Haryana v. Bhajan Lal, 1992

Supp (1) SCC 335, wherein para 102 the Hon'ble Supreme Court

has held as under:-

"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."

9. The offender of the Rule and Act has lodged criminal

case against the petitioner who was discharging his official duty.

The case of the petitioner comes under direction nos. 1 and 7 of the

"Bhajan Lal" (supra). To initiation of criminal proceeding against

any person is serious. It is not appreciated to file any complaint

case examining two witnesses in support of that and the criminal

case against the petitioner be set into motion. Reference may be

made to the case of "Pepsi Food Limited and Another- versus-

Special Judicial Magistrate & Others, reported in (1998) (5) SCC

749" the Hon'ble Supreme Court in para-28 has observed as follows:-

"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

-8- 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 scrutinize 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."

10. In view of above reasons analysis, this Court exercises

its power under section 482 Cr.P.C. Accordingly, entire criminal

proceedings including the F.I.R. in connection with Seraikella P.S.

Case No. 70 of 2021, pending in the Court of learned Chief Judicial

Magistrate, Seraikella-Kharsawan is hereby quashed.

11. This petition is allowed and disposed of. Pending I.A., if

any, stands disposed of.

(Sanjay Kumar Dwivedi, J.) Satyarthi/-