Sunil Katiyal @ Sunil Katial vs The State Of Jharkhand
2022 Latest Caselaw 2456 Jhar

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               IN THE HIGH COURT OF JHARKHAND, RANCHI
                          Cr.M.P. No. 2013 of 2021
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Sunil Katiyal @ Sunil Katial, aged about 65 years, son of Late Harbans Lal Katiyal, resident of Tower-1, Flat No.5J, South City Residency, Kolkata, PO Kolkata South City, PS Kolkata South City, District Kolkata (West Bengal) ............Petitioner

-- Versus --

1.The State of Jharkhand

2.Shri Alam Ansari, son of Albabu Ansari, resident of Village Bhagabandh, Ansari Toli, PO Siyaljori, PS Siyaljori, District Bokaro.....Opposite Parties With Cr.M.P. No. 3095 of 2019

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1.Rama Shankar Singh, aged about 71 years, son of late Ram Vilas Singh, resident of Plot No.124, Cooperative Colony, P.O.B.S.City, P.S.B.S.City, District Bokaro

2.P.N.Pathak @ Pradip Narayan Pathak, aged about 42 years, son of Hardev Pathak, resident of Plot No.115, Cooperative Colony, Dumbri, No.2, PO Jamadoba, PS Jorapokhar, District Bokaro

3.Randhir Singh @ Randhir Kumar Singh, aged about 50 years, son of Dinesh Shankar Singh, resident of Kandra Bazar, Near Pandey Clinic, PO Motinagar, PS Sindri, District Dhanbad ......Petitioners

-- Versus --

1.The State of Jharkhand

2.Shri Alam Ansari, son of Albabu Ansari, resident of Village Bhagabandh, Ansari Tola, PO Siyaljori, PS Siyaljori, District Bokaro.....Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Indrajit Sinha, Advocate Mr. Bibhash Sinha, Advocate For the State :- A.P.P.

        For the O.P.No.2    :- Mr. Shadab Eqbal, Advocate
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9/06.07.2022          Heard Mr. Indrajit Sinha, the learned counsel assisted by

Mr. Bibhash Sinha, the learned vice counsel appearing on behalf of the

petitioner and Mr. Shadab Eqbal, the learned counsel appearing on behalf

of the O.P.No.2.

Since in both the petitions common complaint and the

common facts are involved and as such with consent of the parties, both

these petitions are being heard together.

In these petitions the petitioners have prayed for quashing

of entire criminal proceeding initiated against the petitioners in

connection with Complaint Case No.271 of 2018 including the order

dated 18.09.2018, passed by learned Judicial Magistrate,1st Class,

Bokaro, pending in that court.

The complaint has been filed alleging therein:

That the complainant and his brothers 1.Muslim Ansari, 2.Qasim

Ansari, 3.Yasin Ansari and 4. Sakruddin Ansari had together sold their

ancestral property acquired through registered deeds in Bhagaband

Village No.83 Khata No.58, Khata No.59, pertaining to plot no.1189,

1120/1, 429, 1120/1430, Total Area 13.73 acres to M/s Electrosteel

Steels Limited Siyaljori by registered deed and the agreement and

possession was handed over;

It is further alleged that out of the above khatas and plots, land

acquired under registered deed nos.6058 dated 15.07.1957, pertaining to

plot nos.1180, 1120/1429, 1120/1430 total area 6.80 acres ½ (half)

portion measuring 3.40 acres has been taken possession of by the said

Elecrtrosteel Steel Limited Siyaljori Bokaro in connivance and in support

of the above officers located on the western side of RMHS area over

which the company is running its factory and earning lakhs of rupees. On

demanding damages and compensation for the same, the security guards

and employees have threatened and have driven them out. The accused

persons namely 1.Sunil Katiyal, 2.G.D.Jalan, 3.Rama Shankar Singh,

4.Lakshminidhi, 5.V.S.Tiwari, 6.P.N.Pathak and 7.Randhir Singh have been

falsely assuring that they will be compensated and given employment. In

this way on 25.09.2012 the then officers of the Electrosteel Steel Limited

Shri G.D. Jalan, accused no.2 had given to the complainant and his

brothers, on the letter pad of Electrosteel Steel Limited a statement that

3 acres of land in khata no.58 is under their possession;

The 3 acres of land under their occupation, referred to in the

certified copy is in fact more than 3 acres measures 3.40 acres and is

under occupation of the company for which no compensation has been

paid nor they intend to do so. In this way, at the prevailing market rate

of Rs.10,000/- per decimal total Rs.34,00,000/- along with interest is

payable but the said company is doing dilly dally;

The complainant has from time to time brought the above

complainant against the company before the concerned Thana Incharge

to S.P., Bokaro and to D.C., Bokaro, but in connivance with them, no legal

action has been taken against the company or the said offices. Recently

on 18.12.2017 the complainant has sent pleader's notice to the company

and the accused no.1 but till date no response has been received to the

same;

On 10.3.2016 the accused no.1 Sunil Katiyal, accused no.3 P.N.

Pathak and accused no.4 Randhir Singh called the complainant at

Bhagaband Office at around 1.00 pm and all the said three persons

slapped him and hit him and threatened that if any case is filed with

respect of the land purchased through registered deed in plot nos.1180,

1120/1429, 1120/1430 in khata no.58 relating to 3.40 acres of land then

the complainant would be killed and due to commotion the witness no.1

Atabuddin Ansari, 2.Naseem Ansari and 3.Abdul Ansari arrived and the

accused persons left from there;

Due to fear the complainant has remained quite so far, ultimately

after gather courage and due to the failure on the part of Thana Silayjori

S.P. Bokaro and D.C., Bokaro to act on the complaint of the complainant,

this complaint is being filed before the Court for obtaining justice.

Mr. Indrajit Sinha, the learned counsel appearing for the

petitioners submits that the allegation has been made that

M/s Electrosteel Steels Limited has constructed its steel plant by

encroachment an area of 3.40 acres of land of complainant in Plot

No.1120 (wrongly typed as 1180) 1120/1429, 1120/1430 in Khata No.58

over which it had derived title by virtue of registered Sale Deed No.6058

dated 15.07.1957. He submits that the lands sold to the company by

Registered Deed No.196 dated 12.01.2009 which bears signature of the

complainant and his other four brothers. He submits that out of 10.20

acres, an area of 6.23 acres has been sold to the company. He further

submits that thereafter no complaint has been made so far the

encroachment of land in question is concerned. According to him, alleged

encroachment was of the year 2012 whereas the complaint was filed on

17.03.2018 after delay of more than 5 years and 5 months. He further

submits that the complainant as well as his four brothers were provided

employment by the company and the complainant left the company

without notice on 13.12.2020 whereas his other brothers continued. He

applied for re-employment on 03.01.2018 by way of Annexure-4. He

further submits that the company namely M/s Electrosteel Steel Limited

has undergone proceeding under the Insolvency and Bankruptcy Code,

2016 in C.P.(I.B.) No.361/KB/2017. In the said proceeding, the National

Company Law Tribunal, Kolkata Bench, Kolkata on 17.04.2018 approved

the resolution plan submitted by Vedanta Limited under section 30(6)

read with 31(1) of the Insolvency and Bankruptcy Code, 2016. The said

resolution plan was challenged before the National Company Law

Appellate Tribunal which was dismissed on 10.08.2018 and subsequently

the same was challenged in the Hon'ble Supreme Court and the S.L.P

was dismissed. He submits that moreover the company is not made party

and there is an inordinate delay in filing this petition. In view of section

32(A) of the said Code any liability for trial offences seizes once the

resolution plan is approved. On these grounds, he submits that the

entire criminal proceeding including the order taking cognizance is fit to

be quashed.

On the other hand, Mr. Shadab Eqbal, the learned counsel

appearing on behalf of the O.P.No.2 submits that the petitioners are the

persons who have encroached the land and they are the working agent

of the company and in that view of the fact the company is not required

to be made party and in personal capacity they are liable to face the trial.

He submits that this Court sitting under section 482 Cr.P.C may not look

into other documents and these are the subject of trial.

In view of the above facts and submissions of the learned

counsels appearing on behalf of the parties, the Court has gone through

the materials on record and finds that in the complaint there is allegation

against the company and the encroached land was the subject matter

was being used by the company and these petitioners are the officers of

the company. The land in question was alleged to be encroached in the

year 2012 whereas the complaint case has been filed in the year 2018,

the resolution plan has already been approved by the National Company

Law Tribunal, Kolkata on 17.04.2018 and the appeal has also been

dismissed by order dated 10.08.2018 and the appellate order was tested

before the Hon'ble Supreme Court and the S.L.P was also dismissed.

When the allegations is with regard to the land being encroached by the

company and the company is required to be made accused. A reference

is made to the case of Sharad Kumar Singh v. Sangita Rane, (2015) 12

SCC 781. Paragraph no.13 of the said judgment is quoted hereinbelow:

"13. When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of completeness. In the ultimate analysis, we are of the considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the appellant and that having not been done, the order is sensitively vulnerable and accordingly we set aside the same and quash the criminal proceedings initiated by the respondent against the appellant."

In the case in hand, admittedly company is not made

accused. The case has been lodged after more than 5 years and

considering the application for re-employment by the complainant it

suggest that the filing of the complaint case was after thought. A

reference may be made to the case of Manoj Kumar Sharma and Others

v. State of Chhattisgarh and Another, (2016) 9 SCC 1. Paragraph nos.29

and 30 of the said judgment are quoted hereinbelow:

"29. In the case on hand, after 5 (five) years of the closing of the above case under Section 174 of the Code, a fresh FIR being No. 194 of 2005 was registered on the basis of anonymous letters received by Respondent 2 herein, brother of the deceased, at Durg under Sections 304-B, 498-A and Section 34 IPC stating that the death of Nandini Sharma was a pre-planned

murder. Even after the death of Nandini, the relations between Appellant 1 herein and his in-laws were cordial as can easily be seen from the evidence on record. Appellant 1 herein met his in- laws several times at Durg. Neither at the time of the death of Nandini nor before receiving of anonymous letters by Respondent 2 herein, was there any iota of doubt in the minds of the respondents with regard to the appellants herein. Even the father of the deceased never raised suspicion on the conduct of his son-in-law and only after receiving of the abovesaid letters by Respondent 2, after a lapse of 5 (five) years, he gave his deposition that his daughter was subjected to cruelty for the demand of dowry on the hands of the appellants herein.

30. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. In our opinion, such extraordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by Respondent 2 herein against the appellants, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, Respondent 2 herein has tried to rope the appellants in criminal proceedings. We are of the confirmed opinion that continuation of the criminal proceedings against the appellants pursuant to this FIR is an abuse of the process of law. Therefore, in the interest of justice, the FIR deserves to be quashed. In this context, it is apt to quote the following decision of this Court in Jai Prakash Singh v. State of Bihar4 wherein it was held as under: (SCC p. 383, para 12) "12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/ deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first-hand account of what has actually happened, and who was responsible for the offence in question."

Section 32(A) of the Insolvency and Bankruptcy Code, 2016

stipulates that liability of corporate debtor for an offence committed prior

to the commencement of corporate insolvency resolution plan shall be

seized and the corporate debtor shall not be prosecuted for such offence.

From the date of resolution plan has been approved by the Tribunal

under section 31 of the said Code and by change in the management and

control of the corporate debtor, the parameter has been provided there.

Section 32(A) of the said Code is quoted hereinbelow:

"Section 32A: Liability for prior offences, etc. [32A. (1) Notwithstanding anything to the contrary contained in this Code or any other law for the time being in force, the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the Adjudicating Authority under section 31, if the resolution plan results in the change in the management or control of the corporate debtor to a person who was not--(a) a promoter or in the management or control of the corporate debtor or a related party of such a person; or

(b) a person with regard to whom the relevant investigating authority has, on the basis of material in its possession, reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory authority or Court:

Provided that if a prosecution had been instituted during the corporate insolvency resolution process against such corporate debtor, it shall stand discharged from the date of approval of the resolution plan subject to requirements of this sub-section having been fulfilled:

Provided further that every person who was a "designated partner" as defined in clause (j) of section 2 of the Limited Liability Partnership Act, 2008, or an "officer who is in default", as defined in clause (60) of section 2 of the Companies Act, 2013, or was in any manner incharge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence as per the report submitted or complaint filed by the investigating authority, shall continue to be liable to be prosecuted and punished for such an offence committed by the corporate debtor notwithstanding that the corporate debtor's liability has ceased under this sub-section.

(2) No action shall be taken against the property of the corporate debtor in relation to an offence committed prior to the commencement of the corporate insolvency resolution process of the corporate debtor, where such property is covered under a resolution plan approved by the Adjudicating Authority under section 31, which results in the change in control of the corporate debtor to a person, or

sale of liquidation assets under the provisions of Chapter III of Part II of this Code to a person, who was not--

(i) a promoter or in the management or control of the corporate debtor or a related party of such a person; or

(ii) a person with regard to whom the relevant investigating authority has, on the basis of material in its possession reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory authority or Court.

Explanation.--For the purposes of this sub-section, it is hereby clarified that,--

(i) an action against the property of the corporate debtor in relation to an offence shall include the attachment, seizure, retention or confiscation of such property under such law as may be applicable to the corporate debtor;

(ii) nothing in this sub-section shall be construed to bar an action against the property of any person, other than the corporate debtor or a person who has acquired such property through corporate insolvency resolution process or liquidation process under this Code and fulfils the requirements specified in this section, against whom such an action may be taken under such law as may be applicable. (3) Subject to the provisions contained in sub-sections (1) and (2), and notwithstanding the immunity given in this section, the corporate debtor and any person who may be required to provide assistance under such law as may be applicable to such corporate debtor or person, shall extend all assistance and co-operation to any authority investigating an offence committed prior to the commencement of the corporate insolvency resolution process.]"

In view of the above facts and circumstances and the

reasons and analysis and looking to the provisions of Insolvency and

Bankruptcy Code, 2016 and the fact that the resolution plan has been

settled up to the Hon'ble Supreme Court, the entire criminal proceeding

in connection with Complaint Case No.271 of 2018 including the order

dated 18.09.2018, passed by learned Judicial Magistrate, 1 st Class,

Bokaro, pending in that learned court, is quashed.

Cr.M.P.No.2013 of 2021 and Cr.M.P. No. 3095 of 2019

stand allowed and disposed of.

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

( Sanjay Kumar Dwivedi, J.)

SI/;