Dipak Modak vs The State Of Jharkhand
2022 Latest Caselaw 1656 Jhar

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2646 of 2017

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1.Dipak Modak, son of Sri Nagen Modak @ Logen Modak

2.Raju Modak @ Raju Dan @ Daa, son of Sri Kamdev Dan

3.Kamdeo Dan @ Kamdeo Modak @ Kamdeo Rajak son of late Sudhir Modak @ late Sudhir Dang All are residents of Karmatanr, PO Damodarpur, Police Station

-Baliapur, District Dhanbad ..... Petitioners

-- Versus --

1.The State of Jharkhand

2.Sita Devi, wife of Sri Gopal Hansada, resident of village Kumhartola, Karmatanr, PO and PS Damodarpur, PS Baliapur, Dhanbad ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Zaid Ahmed, Advocate For the State :- Mr.Pravin Kumar Appu, Advocate For the O.P.No.2 :- Mr. Ram Chandra Sahu, Advocate

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11/26.04.2022 This matter was referred by way of referring by the learned

Single Judge of this Court to the Division Bench in view of 'Bomshankar

Jha @ Ors. v. State of Jharkhand and Anr.' reported in (2016) 1 JBCJ 223

(HC) and Shiv Kumar Singh and Ors v. The State of Jharkhand and Anr.

reported in (2017) 1 JLJR 291 as the different view taken by the learned

Single Judge and that is why this has been referred to the Division Bench

for reference as to which of the judgment is the correct law by this Court.

Accordingly, the Division Bench has answered the reference holding that

'Shiv Kumar Singh and Ors v. The State of Jharkhand and Anr.' reported

in (2017) 1 JLJR 291 is a good law and thereafter this matter has been

mentioned before the Court and it has been heard earlier and thereafter

it has come.

Heard Mr. Zaid Ahmed, the learned counsel for the

petitioners, Mr.Pravin Kumar Appu, the learned counsel for the

respondent State and Mr. Ram Chandra Sahu, the learned counsel for the

O.P.No.2.

This petition has been filed for quashing the order dated

08.08.2017 passed by the learned Additional Sessions Judge I cum

Special Judge CBI, Dhanbad in C.P.Case No.3238 of 2016 whereby the

learned court has taken cognizance for the offence under section 3(1)G)

of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities), Act,

1989 has been taken against the petitioners.

The case was instituted by the O.P.No.2 alleging therein

that the instant case has been instituted on the basis of complaint

petition filed by one Sita Devi in which she has stated that she is member

of santhal commuity and used to reside at Kumahartoli Karmatanr. She

claimed that her father in law Mangal Manjhi had received a land from

Hema Kumari through deed no.8606, dated 8.11.1946 in Mauza

Karmatanr Dhanga Lane No.15 Khewat no.2, Khata no.84, plot

no.680/2261 measuring an area of 17 decimals from total land, i.e, 7.01

acres in course of division between Kumhars and Santhal. Mangal Manjhi

had constructed a house on the said land and after his death

complainant came into possession over the house and land and when the

said demolished she shifted to Kumhartoli with his family. On 20.10.2016

at about 12 hours when she went on the land and saw that accused

persons were digging trench for foundation of the house by labours and

Raju Modak is running a chowmin shop in that very land and he

dispossess the complaint and his family members. Informant called her

husband and son then accused persons abused them by taking caste

name. They also assaulted them and forced them to leave the place.

Complainant went to the police station but no action was taken then on

25.11.2016 she had given a written application to Deputy Superintendent

of Dhanbad.

Mr. Zaid Ahmed, the learned counsel for the petitioners

submits that the cognizance order is not a speaking order and the prima

facie materials have not been discussed in the cognizance order. He

further submits that the case is arising out of a land dispute and the

petitioners have purchased the land in question vide Annexure-2 and the

O.P.no.2 has also claimed the land in question. He further submits that

for that land earlier a proceeding under section 144 Cr.PC was initiated

and the police report was called for wherein the police has reported that

these petitioners were residing in the said land by way of constructing

the house since a long period and thereafter 144 proceeding was closed

and thereafter complaint case has been filed. He submits that the case is

purely of civil in nature and for land dispute cognizance has been taken

under section 3(1)G) of the Scheduled Caste/Scheduled Tribe (Prevention

of Atrocities), Act, 1989. He relied in the case of Hitesh Verma v. State of

Uttarakhand, (2020) 10 SCC 710. Paragraph nos. 7, 16, 17 and 18 of the

said judgment are quoted hereinbelow:

"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.5, 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.

Mr. Sahu, the learned counsel for the O.P.No.2 submits that

there is direct allegation of wrongful dispossession of the O.P.No.2 by the

petitioners and in view of that the cognizance under section 3(1)(G) of

the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities), Act, 1989

has been taken by the concerned court.

The word "cognizance" is not defined in the Code of Criminal

Procedure. In the case of "S.K.Sinha, Chief Enforcement Officer vs.

Videocon International Ltd. & Others, reported in (2008) 2 SCC 492", the

Hon'ble Supreme Court in Para-19 has held as follows:-

"19. The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a court or a Judge, it cannot 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone."

When a cognizance order is sought to be quashed, the Hon'ble

Supreme Court has held that when from bare perusal of the FIR or the

complaint an offence is made out then the order taking cognizance cannot

be quashed. This means that the court has to take cognizance of an offence

after perusal of the FIR, police papers and charge sheet, if an offence is

made out. In a complaint case, if from bare perusal of the complaint an

offence is made out, the court has to take cognizance. Thus, it can be said

that the court has to apply its mind and come to a conclusion that an

offence is made out. If the offence is made out, he has to take cognizance

of the offence. It is well settled that it is not necessary to pass a detailed

order giving detail reasons while taking cognizance. The order taking

cognizance should reflect application of judicial mind.

In view of the above facts and the submissions of the

learned counsel for the parties and after looking to the materials on

record it appears that earlier for the same land 144 proceeding was

initiated and the police report was submitted disclosing that the

petitioners are residing there by way of constructing house and pursuant

thereto 144 proceeding was closed and thereafter this case has been

filed by way of filing complaint petition. The learned court has taken

cognizance by order dated 08.8.2017 and stated that he has looked into

the solemn affirmation and the witnesses during the course of enquiry

under section 202 Cr.P.C and has taken cognizance under section 3(1)(G)

of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities), Act,

1989. Looking to the cognizance order it appears that the learned court

has not disclosed its independent judicial mind and looking into the

solemn affirmation and the witnesses has taken cognizance and what are

the materials against the petitioners required are not disclosed in the

order taking cognizance. For cognizance order there is no need to pass

any detailed order but what are the prima facie materials required to be

disclosed in the cognizance order, it is lacking in the case in hand as the

facts of the case disclosed that for the land in question earlier 144

proceeding was already going and the police report supports the case of

the petitioners.

Accordingly, the order taking cognizance dated 08.08.2017

passed in C.P.Case No.3238 of 2016 passed by learned Additional

Sessions Judge I cum Special Judge CBI, Dhanbad is set aside.

The matter is remitted back to the concerned court for

passing a fresh order in accordance with law.

Cr.M.P. No.2646 of 2017 stands disposed of.

I.A., if any, stands disposed of.

( Sanjay Kumar Dwivedi, J.)

SI/,