Jharkhand High Court

Tulsi Nayak vs The State Of Jharkhand on 13 July, 2022

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1047 of 2015

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1.Tulsi Nayak, son of Late Beni Nayak

2.Sahdeo Nayak, son of Tulsi Nayak

3.Ugan Nayak, son of Tulsi Nayak

4.Moti Nayak, son of Tulsi Nayak All residents of Village Sakin Bagodih, Tola Morcha Tand, PO Bagodih, PS Sariya, District Giridih ..... Petitioners

-- Versus --

1.The State of Jharkhand

2.Nirpat Das, son of late Tulo Rabidas, resident of village Bagodih, Tola Lalokoni, PO Bagodih, PS Sariya, District Giridih ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. K.K. Ambastha, Advocate For the State :- Mrs. Vandana Bharti, APP For the O.P.No.2 :- Mr. Suraj Kumar, Advocate

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4/13.07.2022 Heard Mr. K.K. Ambastha, the learned counsel appearing on

behalf of the petitioners and Mr. Suraj Kumar, the learned counsel

appearing on behalf of the O.P.No.2 and Mrs. Vandana Bharti, the

learned counsel appearing on behalf of the respondent State.

This petition has been filed for quashing of the entire

criminal proceeding including the order taking cognizance dated

17.05.2014 in connection with Complaint Case No.69/2013, pending in

the court of learned Chief Judicial Magistrate, Giridih.

The complainant has filed the complaint alleging therein

that the O.P.No.2 has filed a complaint case no.69 of 2013 in the court of

Chief Judicial Magistrate, Giridih against eight persons namely, Tulsi

Nayak, Sahdeo Nayak, Moti Nayak, Ugan Nayak, Leelawati Devi, Sumitra

Devi, Gita Devi and Rukmani Devi for alleged offence committed under

sections 147, 148, 477, 379, 354 and 323 of the Indian Penal Code and

Section 3 and 4 of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act alleging therein that complainant got the

land by virtue of Hukumnama and cultivation is only source of income of

the complainant. On the date of occurrence the accused person came to

the land of the complainant and started cutting the crop of Pigeon

Pea(Arhar dal) by Tanghi and destroyed the plant of pigeon pea. The

complainant and his family members requested not to cut the plant of

the pigeon pea then the accused person threatened the complainant.

When the witness namely Bhuneshwar Das tried to save the complainant

then Ugan Nayak and Sahdeo Nayak beaten the Bhuneshwar Das by

lathi. It was further alleged that the accused person abused the

complainant.

Mr. Ambastha, the learned counsel appearing for the

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

petitioners have received the land by way of Annexure-2 by Bihar Bhudan

Yagya Committee and the said document is annexed as Annexure-2. He

further submits that the O.P.No.2 was made accused by the petitioner in

case under sections 341, 323, 324 and 34 of the IPC which was the

subject matter in G.R.Case No.1779/2001 in which the O.P.no.2 has been

convicted by the trial court and subsequently the O.P.No.2 and others

have been released under the Probation of Offenders Act and thereafter

the present complaint case has been filed and the learned court has

taken the cognizance. He further submits that in the entire complaint it

has not been discussed that the petitioners were not the member of

scheduled caste/tribes and the complainant was intentionally insulted. To

buttress his this argument he relied in the case of "Gorige Pentaiah v.

State of A.P. and Others" reported in J.T.2008 (9) SC 543. Paragraph no.8

of the said judgment is quoted hereinbelow:

"8. "Criminal intimidation" has been defined in Section 503 which reads as under:

"503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that

person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation."

Mr. Suraj Kumar, the learned counsel appearing for the

O.P.No.2 submits that there is allegation and the learned court has rightly

taken cognizance. He relied in the case of Shantaben Bhurabhai Bhuriya

v. Anand Athabhai Chaudhari and Ors which is a reportable judgment in

Cr.Appeal No.967 of 2021. Paragraph no.9 of the said judgment is quoted

hereinbelow:

9. Considering the aforesaid legislative history which brought to insertion of proviso to Section 14 of the Atrocities Act, by which, even the Special Court so established or specified for the purpose of providing for speedy trial the power to directly to take cognizance of offences under the Atrocities Act, 1989, the issue/question posed whether in a case where for the offences under Atrocities Act, the cognizance is taken by the learned Magistrate and thereafter the case is committed to the Court of Sessions/Special Court and cognizance is not straightway taken up by the learned Special Court/Court of Session, whether entire criminal proceedings for the offences under the Atrocities Act, 1989 can be said to have been vitiated, as so observed by the High Court in the impugned judgment and order ?

On these grounds, the learned counsel for the O.P.No.2

submits that this Court may not interfere at this stage.

Mrs. Vandana Bharti, the learned counsel appearing for the

respondent State submits that the court has rightly taken cognizance as

there are allegations against the petitioners.

In the light of the above submission of the learned counsels

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

materials on record and after looking into the complaint it transpires that

there is some dispute with regard to the land. Earlier one proceeding

under section 144 Cr.PC was filed by these petitioners and the police

report has been submitted wherein it has been disclosed that the

petitioners are in possession of the land in question and they were

harvesting the land. The judgment passed in G.R.Case No.1779/2001

[T.R.No.349 of 2011] contained in Annexure-7 clearly suggests that the

O.P.No.2 and others have been convicted by the court and later on they

have been released on probation and subsequently this complaint case

has been filed. Looking into the complaint, there is no allegation that

these petitioners were not members of scheduled castes/tribes and the

complainant was intentionally insulted and on this ground, the judgment

relied by the learned counsel for the petitioners in the case of "Gorige

Pentaiah v. State of A.P. and Others"(supra) is helping the petitioners.

There is no doubt that the offence under the Scheduled

Castes/Scheduled Tribes (Prevention of Atrocities) Act would be made out

when a member of the vulnerable section of the society is subjected to

indignities, humiliations and harassment, and title over the land by either

of the parties is not due to either intimidation, humiliation or harassment.

This was the subject matter before the Hon'ble Supreme Court in the

case of "Hitesh Verma v. State of Uttarakhand" reported in (2020) 10 SCC

710. Paragraph nos.13 and 16 of the said judgment are quoted

hereinbelow:

"13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that Respondent 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that Respondent 2 is a member of Scheduled Caste.

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."

In case of "Hitesh Verma v. State of Uttarakhand"(supra)

the Hon'ble Supreme Court has also considered the case of "Gorige

Pentaiah v. State of A.P. and Others" at paragraph no.21.

In view of the above facts and the contents of the

complaint, the offence under the Scheduled Castes/Scheduled Tribes

(Prevention of Atrocities) Act has not established as it has not been

alleged that the petitioner were not the members of the schedule

castes/tribes and admittedly the case has been filed for taking

possession over the land which was the subject matter in the earlier

proceeding under section 144 Cr.P.C and the judgment delivered in

T.R.No.349 of 2011.

In view of the above facts, the Court finds that the case