Baijnath Pathak @ Baidyanath ... vs The State Of Jharkhand And Another
2023 Latest Caselaw 2126 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 188 of 2014

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Baijnath Pathak @ Baidyanath Pathak and Others.... Petitioners

-- Versus --

The State of Jharkhand and Another .... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Ms.Supriya Dayal, Advocate

For the State :- Mr. Sanjay Kumar Srivastava, Advocate

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6/12.06.2023 Earlier notices were issued upon the O.P.No.2 and the

notices have been effected. Today when the matter was taken up, on

repeated call, nobody has responded on behalf of the O.P.no.2. Identical

was the situation on 20.4.2023 and on that day the matter was

adjourned with a view to provide one more opportunity to the O.P.No.2.

In view of the aforesaid, the matter is being heard on merit in absence of

O.P.No.2.

2. Heard Ms. Supriya Dayal, the learned counsel for the

petitioner and Mr. Sanjay Kumar Srivastava, the learned counsel

appearing on behalf of the respondent State.

3. This petition has been filed for quashing of the entire

criminal prosecution including the order taking cognizance dated

19.3.2013 passed by the learned Chief Judicial Magistrate, Palamau at

Daltonganj arising out of Complaint Case No.986 of 2012 pursuant to

SC/ST Case No.10 of 2013, pending before the learned Special Judge,

SC/ST (P.O.A) Act, Palamau.

4. The complaint case has been filed alleging therein that a

complaint being Complaint Case No. 640 of 2011 was earlier lodged by

the complainant -opposite party no.2 under section 3/4 of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act on 17.06.2011

in the Court of the learned Chief Judicial Magistrate, Palamau, which was

sent u/s 156 (3) of the Code of Criminal Procedure for registration of the

first information report to the officer in charge, vide order dated

20.6.2011. Thereafter, the first information report was registered at

ST/SC Police Station Daltonganj being ST/SC Daltonganj P.S. Case 06 of

2011, corresponding to G.R. No. 1111 of 2011 section 3/ 4 of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act.

In the said complaint which has been made basis for

lodging of the first information report, the allegation has been made by

the opposite party no.2 herein that on 12.05.2011 about 10 P.M. all the

accused persons started demolishing boundary wall of the complainant

and when the complainant and her husband forbid them then abused

them saying accused persons Adivasi Chero with threatening that they

would demolish the house also and they were asked to go away leaving

the house. It is further alleged that the husband of complainant is a

teacher and belonging to a respectable family and the accused persons

had insulted them. The written complaint was made to the

Superintendent of Police, Palamau twice but no action has been taken.

The investigation of the case was conducted by the Dy. S.P. and after ful-

fledged investigation the case was found untrue during the course of

investigation, such occurrence was taken place on the alleged date of

occurrence, whereas on the other hand it was found during the course of

investigation that the complainant had obstructed and encroached Aam

Rasta, which was objected by Mohalla people and as such a false case

was lodged against the accused persons and Sy.S.P. finding the case not

true had submitted final report as untrue in the case. The final report

was submitted in the Court of the learned chief judicial magistrate,

Palamau at Daltonganj being Final Report No. 43 of 2011 dated

3.11.2011. Thereafter (informant) - opposite party no.2 herein had

lodged a protest petition in ST/SC Case No. 06 of 2011, corresponding to

G.R. No. 1111 of 2011 and the protest petition has been registered as

Complaint Case No.986 of 2012 in which section 427 and 504 of the

Indian Penal Code has been subsequently added apart from section 3/ 4

of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act. The complainant was examined on solemn affirmation and the

learned Chief Judicial Magistrate, Palamau at Daltonganj, has taken

cognizance of the offence under sections 427, 504 of the Indian Penal

Code and under sections 3/4 of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, vide order dated 19.03.2013 and

summons were issued against the petitioners. Thereafter the case has

been transferred to the Court of the learned Special Judge, Scheduled

Castes and Scheduled Tribe (Prevention of Atrocities) Act, Palamau at

Daltonganj which has been registered as ST/SC Case No.10 of 2013.

5. Ms. Supriya Dayal, the learned counsel for the petitioner

submits that the complaint was sent to the police under section 156 (3)

of the Cr.P.C. in which the investigation was completed and final form has

been submitted whereby the petitioners have not been sent up for trial

however on protest petition the learned court has taken cognizance and

what are the prima facie materials are not disclosed in the order taking

congnizance. She further submits that in the entire complaint there is no

averment that this petitioner is not belonging to the caste of the O.P.No.2

and in view of that only, the SC/ST case is not made out.

6. On the other hand, Mr. Srivastava, the learned counsel for

the respondent State submits that the final form has been submitted

whereby the petitioners have not been sent up for trial however on the

protest petition the learned court has taken cognizance.

7. In view of the submission of the learned counsel for the

parties, the Court has gone through the materials on record including the

contents of the complaint petition as well as the order taking cognizance.

It appears that in the entire complaint petition it is not averred that the

petitioners are not belonging to the caste of the O.P.no.2 which is one of

the ingredients to take cognizance under SC/ST Act has held in the case

of "Gorige Pentaiah v. State of A.P.", (2008) 12 SCC 531. Paragraph

nos.13 and 14 of the said judgment are quoted below:

"13. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [1964 AC 1254 : (1964) 2 WLR 1145 : (1964) 2 All ER 401 (HL)] Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [1977 AC 1 : (1976) 2 WLR 857 : (1976) 2 All ER 497 (HL)] stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene. He further mentioned that the courts' power to prevent such abuse is of great constitutional importance and should be jealously preserved.

14. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866] this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."

8. Further the case was investigated by the police and the petitioners have

not been sent up for trial however on protest petition the learned court has taken

cognizance and in the order taking cognizance it has not been disclosed that what

are the prima facie materials disclosed in solemn affirmation and the enquiry

witnesses which suggest that the case under the SC/ST Act is not made out.

9. In view of the above reasons and analysis, the entire criminal proceeding

including the cognizance order dated 19.3.2013 passed in Complaint Case No.986

of 2012 pursuant to SC/ST Case Noa.10 of 2013, pending before the learned

Special Judge, SC/ST (P.O.A) Act, Palamau are quashed.

10. This petition is allowed and disposed of.

11. Pending petition if any also stands disposed of.

( Sanjay Kumar Dwivedi, J.)

SI/,,