Jharkhand High Court
Ashutosh Kumar Modak @ Bittu Modak vs The State Of Jharkhand on 25 November, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 554 of 2024
1. Ashutosh Kumar Modak @ Bittu Modak, aged about 48 years
2. Amit Modak @ Sintu Modak, aged about 38 years,
Both are sons of Late Bimal Chandra Modak @ Bimal Modak, R/o Main
Road, Chas, Near Netaji Subhash Chowk, P.O. & P.S. Chas, District-
Bokaro ... Appellants
-Versus-
1. The State of Jharkhand
2. Shankar Prasad Soren, S/o Late Somar Manjhi, R/o Narayanpur Tolla,
P.O. Narayanpur, P.S. Pindrajora, District- Bokaro ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Appellants : Mr. Lukesh Kumar, Advocate
Mr. Sidharth Sudhanshu, Advocate
For the State : Mr. Rakesh Ranjan, A.P.P.
-----
06/25.11.2024 Vide order dated 02.09.2024, notices were directed to be issued upon
respondent no.2, which were effected and on 30.09.2024, the matter was
adjourned as in spite of valid service of notice, respondent no.2 has not
appeared. The matter was further adjourned with a view to provide one
more opportunity to respondent no.2 on 22.10.2024 and in spite of that,
nobody has appeared till date on behalf of respondent no.2, which clearly
suggests that respondent no.2 is not interested in contesting the present
case.
2. Heard Mr. Lukesh Kumar, learned counsel for the appellants and
Mr. Rakesh Ranjan, learned counsel for the State.
3. I.A. No.9151 of 2024 has been filed for condonation of delay of 971
days in preferring the present appeal.
4. Learned counsel for the appellants submits that the delay has
occurred as earlier Cr.M.P No.969 of 2023 was filed before this Court which
was dismissed with liberty to file an appeal in light of Section 14-A of the
Cr. Appeal (SJ) No. 554 of 2024 1-
SC/ST (Prevention of Atrocities) Act. He submits that the case of the
appellants is covered in light of the judgment passed by the Hon'ble
Allahabad High Court in the case of Ghulam Rasool Khan and others v.
State of U.P. and others, reported in 2022 SCC OnLine All 975 as
Section 14-A (3) of the SC/ST (Prevention of Atrocities) Act has been struck
down by the Full Bench of the Hon'ble Allahabad High Court.
5. Learned counsel for the State submits that sufficient ground is not
made out to condone the said delay.
6. In view of the above facts and considering the judgment passed by
the Full Bench of the Hon'ble Allahabad High Court in the case of Ghulam
Rasool Khan (supra), the Court finds that sufficient reason is made out to
condone the delay and, as such, the delay of 971 days in preferring the
present appeal is, hereby, condoned.
7. Accordingly, I.A. No.9151 of 2024 is allowed and disposed of.
8. This appeal is preferred for quashing the entire criminal proceeding
including the order taking cognizance dated 25.09.2019 passed in C.P. Case
No.959/2018 (SC/ST Case No.01/2017) by the learned District and
Additional Sessions Judge 1st cum Special Judge, Bokaro, pending in that
Court.
9. Learned counsel for the appellants submits that for the same
allegation, earlier Sector IV P.S. Case No.01/2017 was lodged on
08.01.2017, corresponding to G.R. Case No.42/2017, which was investigated
by the police and final form was submitted, whereby, the appellants have
not been sent up for trial. He submits that thereafter protest cum complaint
Cr. Appeal (SJ) No. 554 of 2024 2-
petition was filed alleging therein:
In the year 2016, respondent no.2 has purchased the
land situated at Mouza Narayanpur, Mouza No.33, Khata
No.175, Plot No.2001 and 2002, area measuring 6 ½ decimals
and the said land is in possession and has also got his
mutation done for the said land. On 23.12.2016 at about 09:00
A.M., under conspiracy the accused persons namely Gopal
Modak, Bittu Modak, Sintu Modak, Annul Khalifa, Latif Sheikh,
Imran Khalifa came to the land in question with the intention
to grab the said land and they started digging over the same.
On this the complainant has protested and objected the same,
thereafter, the accused persons started assaulting respondent
no.2 and his wife Bindu Devi and used insulting words and
caste work like Manjhi and they also forcefully driven out from
the land in question, when the witnesses came to the place of
occurrence, the accused persons forcefully started constructing
boundary wall. Thereafter for the said act, respondent no.2
gave a complaint to the Pindrajora Police Station but the said
was not registered and thereafter on 28.12.2012, he made a
complaint to SC/ST Thana, Sector IV, B.S. City, Bokaro and an
FIR was lodged bearing SC/ST Case No.01/2017,
corresponding to G.R. Case No.42/2017 for the offence under
Section 387, 506, 34 of IPC and under Section 3(x) (iv) (V) of
SC/ST (Prevention of Atrocities) Act and intentionally the police
by suppressing the evidences, submitting a final form in favour
of the accused persons and hence, the complaint was filed.
10. Learned counsel for the appellants further submits that earlier Sector
IV P.S. Case was investigated by the police and charge-sheet was not
submitted against the appellants and it was pointed out that the appellants'
uncle has also purchased the land to the tune of 15 decimals of land from
the same descendants from whom the complainant has also purchased the
Cr. Appeal (SJ) No. 554 of 2024 3-
land and the allegations were made that the appellants are encroaching the
land of the complainant, however, on investigation the police has not found
the allegation as correct and in view of that the appellants have not been
sent up for trial. He submits that in this background, the learned Court only
on the protest petition has been pleased to take cognizance against the
appellants that too under the SC/ST (Prevention of Atrocities) Act. He also
submits that if any case is made out, that is civil in nature and if the case is
civil in nature, the case of the appellants is covered in light of the judgment
passed by the Hon'ble Supreme Court in the case of Hitesh Verma v.
State of Uttarakhand and another , reported in (2020) 10 SCC 710.
He refers paragraphs 14, 16 and 18 of the said judgment, which read as
under:
"14. Another key ingredient of the provision is insult or
intimidation in "any place within public view". What is to be
regarded as "place in public view" had come up for
consideration before this Court in the judgment reported as
Swaran Singh v. State [Swaran Singh v. State, (2008) 8 SCC
435 : (2008) 3 SCC (Cri) 527] . The Court had drawn
distinction between the expression "public place" and "in any
place within public view". It was held that if an offence is
committed outside the building e.g. in a lawn outside a house,
and the lawn can be seen by someone from the road or lane
outside the boundary wall, then the lawn would certainly be a
place within the public view. On the contrary, if the remark is
made inside a building, but some members of the public are
there (not merely relatives or friends) then it would not be an
offence since it is not in the public view (sic) [Ed. : This
sentence appears to be contrary to what is stated below in
the extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-
e, and in the application of this principle in para 15,
below:"Also, even if the remark is made inside a building, but
some members of the public are there (not merely relatives or
friends) then also it would be an offence since it is in the
public view."] . The Court held as under : (SCC pp. 443-44,
para 28)
"28. It has been alleged in the FIR that Vinod Nagar,
the first informant, was insulted by Appellants 2 and 3
(by calling him a "chamar") when he stood near the car
Cr. Appeal (SJ) No. 554 of 2024 4-
which was parked at the gate of the premises. In our
opinion, this was certainly a place within public view,
since the gate of a house is certainly a place within
public view. It could have been a different matter had
the alleged offence been committed inside a
building, and also was not in the public view. However,
if the offence is committed outside the building e.g. in
a lawn outside a house, and the lawn can be seen by
someone from the road or lane outside the boundary
wall, the lawn would certainly be a place within the
public view. Also, even if the remark is made inside a
building, but some members of the public are there
(not merely relatives or friends) then also it would be
an offence since it is in the public view. We must,
therefore, not confuse the expression "place within
public view" with the expression "public place". A place
can be a private place but yet within the public view.
On the other hand, a public place would ordinarily
mean a place which is owned or leased by the
Government or the municipality (or other local body) or
gaon sabha or an instrumentality of the State, and not
by private persons or private bodies."
(emphasis in original)
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.
18. Therefore, offence under the Act is not established
merely on the fact that the informant is a member of
Scheduled Caste unless there is an intention to humiliate a
member of Scheduled Caste or Scheduled Tribe for the reason
that the victim belongs to such caste. In the present case, the
parties are litigating over possession of the land. The
allegation of hurling of abuses is against a person who claims
title over the property. If such person happens to be a
Scheduled Caste, the offence under Section 3(1)(r) of the Act
is not made out."
11. Learned counsel for the State submits that the police has investigated
the matter and submitted final form, however, the learned Court has been
pleased to take cognizance.
Cr. Appeal (SJ) No. 554 of 2024 5-
12. It is an admitted position that the earlier filed Sector IV P.S. Case
No.01/2017 was investigated by the police and final form was submitted in
favour of the appellants saying that the complainant has alleged that the
appellants are encroaching upon the land, which was purchased by both the
sides from the same descendants of the property in question, however, on
the protest petition, the learned Court has been pleased to take cognizance.
Thus, it appears that for the land dispute, maliciously the case under the
SC/ST (Prevention of Atrocities) Act has been tried to be made out and the
learned Court has been pleased to take cognizance against the appellants.
If such a situation is there, the case of the appellants is covered by the
judgment passed by the Hon'ble Supreme Court in the case of Hitesh
Verma (supra) on which reliance has been placed by the learned counsel
for the appellants.
13. In view of the above facts, reasons and analysis, the entire criminal
proceeding including the order taking cognizance dated 25.09.2019 passed
in C.P. Case No.959/2018 (SC/ST Case No.01/2017) by the learned District
and Additional Sessions Judge 1st cum Special Judge, Bokaro, pending in
that Court are, hereby, quashed.
14. Accordingly, this appeal is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
Cr. Appeal (SJ) No. 554 of 2024 6-
