Sidhi Pandey @ Sidhi Nath Pandey vs The State Of Jharkhand
2022 Latest Caselaw 2265 Jhar

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               IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2168 of 2021

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Sidhi Pandey @ Sidhi Nath Pandey, aged about 80 years, son of late Samol Pandey, resident of village and PO Pandu, PS Pandu, District Palamau ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Kanti Kumari, daughter of Lalan Ram, resident of village Kajrukala, PO Kajrukhurd, PS Pandu, District Palamau ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Mahesh Tewari, Advocate For the State :- Mr. B.N. Ojha, Advocate

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6/27.06.2022 By order dated 26.10.2021 notices were directed to be

issued upon the O.P.No.2. The Office note suggest that notice upon

O.P.No.2 has been effected and with a view to provide one opportunity

the matter was adjourned to 3.02.2022. Again matter was adjourned

04.05.2022. Inspite of sufficient opportunity provided to the O.P.No.2 and

inspite of valid service of notice nobody has responded on behalf of the

O.P.no.2.

Today also on repeated calls nobody has responded on

behalf of the O.P.No.2 and accordingly the matter was heard on merit.

Heard Mr. Mahesh Tewari, the learned counsel appearing for

the petitioner and Mr. B.N.Ojha, the learned counsel for the respondent

State.

This petition has been filed for quashing the order dated

09.8.2021 passed by the learned Exclusive Special Judge, POCSO Act,

Palamau at Daltonganj in Special POCSO Case No.62 of 2017 arising out

of Pandu PS Case No.67 of 2017 whereby cognizance for offence under

sections 354, 354(A), 376/511, 448, 509 of the IPC read with section

4/18 and 8 of Prevention of Children from Sexual Offences Act has been

taken with a direction to issue summons to the petitioner, pending in the

court of learned Exclusive Special Judge, POCSO Act, Palamau at

Daltonganj.

Mr. Tewari, the learned counsel appearing for the petitioner

submits that the petitioner is aged about 80 years and there are series of

litigation between the petitioner and family members of O.P.No.2. By way

of referring judgment passed by the civil court which are annexed as

Annexure 9 to 14 he submits that for the land in question the family

members of the O.P.No.2 and the petitioner have contested and only with

a view to grab the land of the petitioner false case is being filed against

the petitioner. He submits that pursuant to the FIR the police has

investigated the matter and submitted final form disclosing lack of

evidence on 30.12.2017. He further submits that after submission of final

form O.P.No.2 again filed a case which was numbered as Complaint Case

No.106/2018 which was converted into FIR and was registered as Pandu

P.S.Case No.14 of 2018. He submits that again investigation was done by

the police and final form has been submitted disclosing lack of evidence

which has been accepted by the learned court by order dated

29.05.2019. He submits that now after four years the cognizance order

has been taken with regard to FIR lodged prior to Pandu P.S.Case No.14

of 2018 in which final form has been accepted. He submits that entire

allegation against the petitioner is malicious and no case under the IPC

as well as POCSO Act is made out.

The learned counsel for the respondent State submits that

on protest petition the learned court found material and thereafter taken

cognizance against the petitioner.

The Court has gone through the materials on record

whereupon it appears that Pandu P.S.Case No.67 of 2017 was filed on

01.12.2017 against the petitioner and final form has been submitted

stating that there is no evidence against the petitioner. The O.P.No.2

further filed another case stating same allegation on 25.02.2018 in which

also final form has been submitted stating there is no evidence against

the petitioner which was accepted by the concerned court and after

acceptance of the final form in the second case, protest petition filed in

the earlier case and after four years cognizance has been taken against

the petitioner. Once the second case has been filed in which final form

was submitted it was incumbent upon the OP No.2 to file protest in the

second case as in the earlier case which is subject matter of this Cr.M.P.

the OP No.2 does not respond to the call by the learned court. Twice the

matter was investigated by the police and both times final form has been

submitted in favour of the petitioner and after lapse of four years

cognizance has been taken in the earlier case namely Pandu P.S.Case

No.67/2017. It is settled proposition of law that if any case is filed

maliciously the court sitting under section 482 CrPC can exercise its

power at very initial stage also. Reference made be made to the case of

'State of Haryana v. Bhajan Lal', 1992 Supp (1) SCC 335. Paragraph

no.102 of the said judgment is quoted hereinbelow:

"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."

To allow this case in the court below will amount to abuse

of the process of the court, and accordingly, the entire criminal

proceeding including the order dated 09.8.2021 passed by the learned

Exclusive Special Judge, POCSO Act, Palamau at Daltonganj in Special

POCSO Case No.62 of 2017 arising out of Pandu PS Case No.67 of 2017

whereby cognizance has been taken, pending in the court of learned

Exclusive Special Judge, POCSO Act, Palamau at Daltonganj is quashed.

Cr.M.P. No. 2168 of 2021 is allowed and disposed of.

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

( Sanjay Kumar Dwivedi, J.)

SI/;