Jharkhand High Court
Aftab Alam vs The State Of Jharkhand on 12 April, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2977 of 2013
Aftab Alam .... ...Petitioner
Versus
1.The State of Jharkhand
2. Ramdeo Singh Kharwar
..... ...Opp. Parties
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner: Mr. Shekhar Prasad Sinha, Advocate
For the State : Mrs. Ruby Pandey, A.P.P.
14/ Dated:-12.04.2023
Status report suggests that the case is pending. It has
been disclosed that complainant has left for his heavenly abode.
Notice to the complainant was issued by this Court and as per
service report it appears that O.P. No. 2 has left for his heavenly
abode and his death has been confirmed by his son Uday Pratap
Singh.
In that view of the matter the son of the O.P. No. 2 is well
aware of the case pending before the learned court and before this
court but he is not appearing neither before the learned court nor
before this Court. Accordingly, this petition is being heard on merit.
Heard Mr. Shekhar Prasad Sinha, learned counsel for the
petitioner and Mrs. Ruby Pandey, learned counsel for the State.
The present petition has been filed for quashing of
entire criminal proceeding as well as the order dated 21.11.2011
passed in C.P. Case No. 945 of 2010, corresponding to SC/ST No.
06/2011 whereby cognizance has been taken under section 323,
504 of the I.P.C. and under sections 3, 4 of SC & ST (Prevention of
Atrocities) Act, pending in the court of learned Additional District
Judge-I, Garhwa.
The complaint petition has been filed alleging therein
that the complainant belongs to a Member of scheduled tribe and
maintains his livelihood by cultivation. In the land of the
complainant in cultivation there was lack of water. The petitioner
works as an Assistant Engineer-cum-S.D.O., Irrigation under
Waterways Division, Garhwa and by the orders of the petitioner, the
water is released from the dam in canal for the purpose of
irrigation by which farmers do the work of cultivation. The
complainant met with the petitioner on 04.09.2010 at about 12
noon and suggested that if water is released from the dam in the
canal for the purpose of irrigation, then the paddy crops can be
saved from being dried out. The petitioner allegedly became angry
and uttered the word jungle adivasi to the complainant and
assaulted him.
Mr. Shekhar Prasad Sinha, learned counsel for the
petitioner submits that the petitioner is S.D.O., Irrigation
Department in the district of Garhwa. He submits that on the
alleged date of occurrence i.e. 04.09.2010 the complainant only
asked the petitioner to release water from the dam in canal on
which the petitioner became angry and assaulted the complainant.
He submits that the petitioner was discharging his official duty and
in absence of any command from higher authority he was not able
to release the water. He further submits that Irrigation Department
has also lodged a complaint on 09.03.2010 for construction of canal
and the obstruction being made by the villagers. He submits that
ingredients of SC/ST Act is not made out against the petitioner and
inspite of that learned court has taken cognizance.
Learned counsel for the State submits that looking into
Solemn Affirmation and enquiry witnesses, learned court has taken
cognizance.
The Court has perused the contents of complaint as
well as order taking cognizance and finds that for not releasing the
water the present complaint has been filed. Only bald allegation is
there about the caste of the complainant. There is no averment in
the complaint that petitioner is not belonging to the SC/ST Caste
which is one of the requirement to make out the case under SC/ST
Act as has been held by the Hon'ble Supreme Court in the case of
"Gorige Pentaiah v. State of Andhra Pradesh and Others", (2008) 12 SCC
531. Paragraph no.6 of the said judgment is quoted herein-below:
"6. In the instant case, the allegation of
respondent 3 in the entire complaint is that on
27.05.2004, the appellant abused them with the
name of the their caste. According to the basic
ingredients of section 3(1)(x) of the Act, the
complainant ought to have alleged that the
appellant accused was not a member of the
Scheduled Caste or a Scheduled Tribe and he
(respondent 3) was intentionally insulted or
intimidated by the accused with intent to humiliate
in a place within public view. In the entire
complaint, nowhere it is mentioned that the
appellant accused as not a member of the
Scheduled Caste or a Scheduled Tribe and he
intentionally insulted or intimidated with intent to
humiliate respondent 3 in a place within public
view. When the basic ingredients of the offence are
missing in the complaint, then permitting such a
complaint to continue and to compel the appellant
to face the rigmarole of the criminal trial would be
totally unjustified leading to abuse of process of
law."
Further in view of Annexure-3, it appears that Irrigation
Department has also lodged complaint before the concerned police
station about the obstruction being made by the villagers which
suggests that the petitioner was discharging his official duty which
is coming under section 197 of Cr.P.C. and in absence of sanction,
cognizance has been taken.
In view of above facts, reasons and analysis, entire
criminal proceeding as well as the order dated 21.11.2011 passed
in C.P. Case No. 945 of 2010, corresponding to SC/ST No. 06/2011
whereby cognizance has been taken under section 323, 504 of the
I.P.C. and under sections 3, 4 of SC & ST (Prevention of Atrocities)
Act, pending in the court of learned Additional District Judge-I,
Garhwa, so far as this petitioner is concerned, is quashed and set
aside.
This petition stands allowed and disposed of. Pending,
I.A, if any, stands disposed of. Interim order is vacated.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/-
