Jharkhand High Court
Usha Prasad vs The State Of Jharkhand on 11 September, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 421 of 2022
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1. Usha Prasad
2. Atul Kumar @ Dr. Atul Kumar Sinha
3. Samita Prasad
4. Vishwanath Narayan
5. Somya Pammi .... .... .... Petitioners
Versus
1. The State of Jharkhand
2. Mantu Raj .... .... .... Opp. Parties
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioners: Mr. Rajendra Krishna, Mr. P. Shounikya, Advocates
Mr. Shubham Mayank & Mr. A. A. Srivastava, Advs.
For the State : Mr. Satish Prasad, A.P.P.
For the O.P. No.2 : Mr. Samavesh Bhanj Deo, Advocate
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Order No. Dated : 28.08.2023
Instant petition has been filed for quashing of entire criminal
proceeding including the order taking cognizance dated 02.03.2020 against the
petitioners in Complaint Case No.2447 of 2018 whereby and whereunder the
prima facie case been found to be made out under Sections 323, 341 and 379
of the Indian Penal Code and process is directed to be issued.
2. Instant complaint has been filed on 08.06.2018 under Sections 323,
341, 379, 406, 427, 120B/34 of the Indian Penal Code with regard to the
incidence which allegedly took place on 01.04.2017 and on subsequent dates.
The case of the complainant is that under an agreement, husband of the
petitioner had let out a shop of 70 Sq. Ft. to the complainant on the basis of
rent of Rs.600/- per month for the period 1999-2002. After the death of
husband of petitioner no.1, he continued the business from the shop and in
February, 2017, the petitioner nos.2-4 [who are the daughter-in-law and son-
in-law] came and said to him that they intend to start business on the said shop
and also threatened. On 01.04.2017 without any prior notice, shop had been
locked from outside by the accused persons and information regarding this
was given to the concerned police station. It is also alleged that the electronic
item like laptop, charger, UPS, computer etc. were stolen from the said shop.
On 31.05.2018, when he went to the shop under being instructed by the police,
petitioner nos.2-4 abused and used criminal force and gold chain and
Rs.6000/- was snatched and he was also assaulted.
3. During enquiry, three witnesses (complainant and two witnesses)
were examined and on its basis, process has been issued.
4. The impugned order has been assailed on the ground that only to pressurize
the petitioners, the entire family including petitioner no.1 who is aged 70 years
old lady, have been implicated in the case.
5. Further case of the complainant is falsified from the statement of
E.W.1- Sanjay Kumar wherein in para 4, he said that the said shop was opened
in presence of the police, therefore, the question of committing theft or
removing property from the shop does not arise. Therefore, Section 379 of the
Indian Penal Code will not apply. In para 5, it has been stated that they were
assaulted by the accused persons in presence of police, but no police case was
registered with regard to it.
6. It is submitted that landlord-tenant relation has been given a colour of
criminal case which will be apparent from the fact that tenancy was for the
period 1999-2002 and thereafter on the said plot, a building has been
constructed by the developer of the plot and he was not in actual physical
possession of the said shop. It is further submitted that a proceeding under
Section 107 of the Cr.P.C. was initiated in which the petitioner no.1 was the
first party.
7. Learned counsel for the State assisted by learned counsel for the O.P. No.2
has opposed the prayer. It is submitted that at the stage of summoning up the
accused/ petitioners, mini trial is not expected to be held by the learned trial
Court. Further defence cannot also not to be looked into. Reliance is placed
upon the judgment reported in 2008(2) SCC 499 wherein learned Trial Court
has applied its mind and passed an appropriate order.
8. Having considered the rival submissions advanced on behalf of both the
sides and materials on record, this Court is of the view that part of the
complaint case gets falsified on the basis of statement of the enquiry witness
wherein he stated that the shop was opened in presence of the police party.
9. An implausible case has been set up by the complainant. Petitioner no.1
being senior citizen and an old woman of about 70 years old. Petitioner no.2 is
a Professor, petitioner no.4 is son-in-law of petitioner no.1 whereas petitioner
nos.3 and 5 are her daughters. The allegation of theft will be falsified on the
basis of averment made in the Complaint petition as well as the statement of
the complainant recorded on SA. It is alleged that when the complainant came
to the shop when it was opened in the presence of police party wherein E.W.1
as stated in Para-4. When the shop was opened in presence of Police party
then the question of committing theft in the said shop gets completely
falsified. Further, if the theft is committed then the FIR would have been
lodged immediately thereafter, but no FIR has been lodged and the instant
case has been filed with a view to harass the petitioners.
10. It is not in dispute that there is landlord and tenant relationship and if
the Police party was present at the place of occurrence, a woman aged about
70 years old would not have been assaulted and in any case, FIR would have
been lodged with regard to the same incidence. Therefore, I find much force in
the argument advanced on behalf of the petitioner that present criminal case is
outcome of landlord-tenant dispute and has been filed to wreak vengeance.
It has been held by Hon'ble the Supreme Court in Vijay Kumar Ghai v.
State of W.B., (2022) 7 SCC 124
25. This Court has time and again cautioned about converting purely civil
disputes into criminal cases. This Court in Indian Oil Corpn. [Indian Oil
Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188]
noticed the prevalent impression that civil law remedies are time consuming
and do not adequately protect the interests of lenders/creditors. The Court
further observed that : (Indian Oil Corpn. case [Indian Oil Corpn. v. NEPC
India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] , SCC p. 749, para 13)
"13. ... Any effort to settle civil disputes and claims, which do not involve
any criminal offence, by applying pressure through criminal prosecution
should be deprecated and discouraged."
Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749
28. Summoning of an accused in a criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of course. It is not that the
complainant has to bring only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The order of the Magistrate
summoning the accused must reflect that he has applied his mind to the facts
of the case and the law applicable thereto. He has to examine the nature of
allegations made in the complaint and the evidence both oral and
documentary in support thereof and would that be sufficient for the
complainant to succeed in bringing charge home to the accused. It is not that
the Magistrate is a silent spectator at the time of recording of preliminary
evidence before summoning of the accused. The Magistrate has to carefully
scrutinise the evidence brought on record and may even himself put
questions to the complainant and his witnesses to elicit answers to find out
the truthfulness of the allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the accused.
Accordingly, the entire criminal proceeding including the order taking
cognizance dated 02.03.2020 against the petitioners (above-named) passed in
Complaint Case No.2447 of 2018 is set aside.
The instant Cr. M. P. is allowed.
(Gautam Kumar Choudhary, J.)
Sandeep/
