Jharkhand High Court
Pawan Kumar Dokania @ Pawan Dokania vs The State Of Jharkhand on 3 October, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 07 of 2024
1. Pawan Kumar Dokania @ Pawan Dokania, aged about 58 years, son of
Meghraj Dokania, resident of Village Dalabor, P.O. & P.S. Nala, District-
Jamtara
2. Ranjit Kumar Dokania @ Ranjit Dokania, aged about 57 years, son of
Meghraj Dokania, resident of Village Dalabor, P.O. & P.S. Nala, District-
Jamtara
3. Ashok Kumar Dokania @ Ashok Dokania, aged about 69 years, son of
Ramjilal Dokania, resident of Kulti College More, Kulti M, Kulti,
Barddhaman, P.O. & P.S. Kulti, District- Barddhaman, State- West
Bengal ... Appellants
-Versus-
1. The State of Jharkhand
2. Sadananda Bauri, son of Kalichand Bouri @ Kala Bouri, resident of
Village Nala Bazar, P.O. & P.S. Nala, District- Jamtara ... Respondents
-----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Appellants : Mr. Rohan Mazumdar, Advocate
For the State : Mrs. Shweta Singh, A.P.P.
-----
08/03.10.2024 Notice was issued upon respondent no.2 vide order dated 31.07.2024.
Service report is on the record, which suggests that respondent no.2 has
left for his heavenly abode.
2. Learned counsel appearing for the appellants submits that he has not
been able to find out whether any substitution is made before the learned
Court, where the matter is pending or not.
3. In view of the above, this appeal is being heard in absence of
respondent no.2.
4. Heard Mr. Rohan Mazumdar, learned counsel appearing for the
appellants and Mrs. Shweta Singh, learned counsel appearing for the State.
5. The present criminal appeal is directed against the order dated
18.04.2022 passed by the learned Special Judge, Jamtara in SC/ST Case
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No.12 of 2021, whereby, he has been pleased to take cognizance under
Sections 341, 323, 504/34 of the Indian Penal Code and under Section 3(1)
(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act against the appellants, pending in the Court of the learned Special
Judge, Jamtara.
6. Office objection is made with regard to maintainability of this appeal
as it has been filed after lapse of 180 days in light of Section 14-A (3) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
7. Mr. Rohan Mazumdar, learned counsel appearing for the appellants
submits that if a cogent reason is made, for the ends of justice this Court is
competent to entertain the present criminal appeal. He submits that so far
as Section 14-A (3) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 is concerned, that has already been
struck down 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. He then submits that there is land dispute and for
that, the case has been falsely lodged in the complaint form and the learned
Court has been pleased to take cognizance under the Indian Penal Code
sections as well as Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act sections. He submits that in view of that, this appeal may
kindly be decided on merit. He submits that the appellants are having good
case of quashing of the entire criminal proceeding as well as the order
taking cognizance dated 18.04.2022. He relied upon the judgment passed
by the Hon'ble Allahabad High Court in the case of Ghulam Rasool Khan
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(supra) and submits that in paragraphs 27 and 28 of the said judgment, it
has been dealt with by the Full Bench of the Hon'ble Allahabad High Court
that the said provision is ultra vires. He further submits that earlier the
appellants had preferred Cr.M.P. No.3794 of 2022, which was dismissed as
withdrawn vide order dated 16.07.2024 with liberty to avail alternative
remedy and, thereafter, the present criminal appeal has been filed after
expiry of 180 days. He submits that the land dispute is there and for that
the present case has been filed against the appellants in which cognizance
has been taken against them. He also submits that the case of the
appellants is also 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 further relied upon the
judgment passed by the Hon'ble Supreme Court in the case of Usha
Chakraborty and another v. State of West Bengal and another ,
reported in 2023 SCC OnLine SC 90. On these grounds, he submits that
the entire criminal proceeding including the order taking cognizance may
kindly be quashed.
8. Mrs. Shweta Singh, learned counsel appearing for the State opposed
the prayer on the ground that after much delay, the present appeal has
been preferred, however, she is not disputing the ratio laid down by the
aforesaid judgment of the Full Bench of the Hon'ble Allahabad High Court.
She further submits that on the complaint, the learned Court has been
pleased to take cognizance against the appellants and there is no illegality
in the said order.
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9. In view of the above submissions of the learned counsel for the
parties, the Court has gone through the materials on record including the
contents of the complaint petition and finds that admittedly there is land
dispute between the appellants and the complainant. The complainant-
respondent no.2 has left for his heavenly abode and it is not known whether
any substitution is made before the learned Court, where, the matter is
pending, or not.
10. It was pointed out that earlier the appellants had preferred Cr.M.P.
No.3794 of 2022, which was dismissed as withdrawn with liberty to avail
alternative remedy and, thereafter, the present criminal appeal is presented.
11. There is no doubt that in light of Section 14-A (3) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, there is
bar of filing appeal after lapse of 180 days, however, the said provision has
been struck down by the Full Bench of the Hon'ble Allahabad High Court in
the case of Ghulam Rasool Khan (supra). On a reference made by the
learned Single Judge of the Hon'ble Allahabad High Court, the Full Bench
was constituted in the case of Ghulam Rasool Khan (supra) and
following questions were placed before the Full Bench:
(I) Whether a Single Judge of this Court while deciding Criminal Appeal
(Defective) No. 523/2017 In re : Rohit v. State of U.P. vide judgment dated
29.08.2017 correctly permitted the conversion of appeal under Section 14
A of the Act, 1989 into a bail application by exercising the inherent powers
under Section 482 of the Cr.P.C.?
(II) Whether keeping in view the judgment of Rohit (supra), an aggrieved
person will have two remedies available of preferring an appeal under the
provisions of Section 14 A of the Act, 1989 as well as a bail application
under the provisions of Section 439 of the Cr.P.C.?
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(III) Whether an aggrieved person who has not availed of the remedy of
an appeal under the provisions of Section 14 A of Act, 1989 can be allowed
to approach the High Court by preferring an application under the
provisions of Section 482 of the Cr.P.C.?
(IV) What would be the remedy available to an aggrieved person who has
failed to avail the remedy of appeal under the provision of Act, 1989 and
the time period for availing the said remedy has also lapsed?
12. The aforesaid questions have been answered by the Full Bench of the
Hon'ble Allahabad High Court, which read as under:
(i) Question No.(I) is answered in negative as Rohit Vs State of U.P. and
another, (2017) 6 ALJ 754 has been overruled by Full Bench of this Court
in In Re : Provision of Section 14 (a) of SC/ST (Prevention of Atrocities)
Amendment Act, 2015, (2018) 6 ALJ 631.
(ii) Question No.(II) is answered in negative holding that an aggrieved
person will not have two remedies namely, i.e. filing an appeal under
Section 14A of the 1989 Act as well as filing a bail application in terms of
Section 439 Cr.P.C.
(iii) Question No.(III) is answered in negative holding that the aggrieved
person having remedy of appeal under Section 14A of the 1989 Act, cannot
be allowed to invoke inherent jurisdiction of this Court under Section 482
Cr.P.C.
(iv) Question No.(IV) - There will be no limitation to file an appeal against
an order under the provisions of 1989 Act. Hence, the remedies can be
availed of as provided.
13. Second proviso of Section 14-A (3) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been struck down
being in violation of Articles 14 and 21 of the Constitution by a Full Bench of
Hon'ble Allahabad High Court in In Re : Provision of Section 14-(a) of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015 reported in (2018) SCC OnLine All
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2087 and in view of the judgment of Hon'ble Supreme Court in the case of
Kusum Ingots & Alloys Limited vs. Union of India and another ,
reported in (2004) 6 SCC 254, paragraph 22 of which reads as under:
"22. The Court must have the requisite territorial
jurisdiction. An order passed on a writ petition questioning
the constitutionality of a parliamentary Act, whether
interim or final keeping in view the provisions contained in
clause (2) of Article 226 of the Constitution of India, will
have effect throughout the territory of India subject of
course to the applicability of the Act."
14. In view of the above striking down of the second proviso of Section
14-A (3) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 shall have effects throughout the territory of India to
which the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 is applicable including the State of Jharkhand. Hence, the
objection raised by the Stamp Reporter is overruled.
15. I.A. No.7519 of 2024 has been filed for condonation of delay in filing
the present criminal appeal and the reason is assigned that a petition was
filed within time in the form of Cr.M.P., however, later on that Cr.M.P. was
dismissed as withdrawn with liberty to avail alternative remedy.
16. It is well settled that if wrong form is made, the period spent in
pursuing the same can be condoned.
17. The Court finds that sufficient reason is made out to condone the
delay and, as such, the delay in filing the present appeal is, hereby,
condoned.
18. Accordingly, I.A. No.7519 of 2024 is disposed of.
19. So far as merit of the case is concerned, that has been argued by the
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learned counsel appearing for the appellants. The Court has looked into the
contents of the complaint and finds that the allegations are made in
paragraph 2 of the complaint that there is a land on Nala Bazar near Thana
Road which is the ancestral property of the complainant recorded in the
name of Kala Bouri @ Kalachand Bouri being Plot No.433 of Mouza Nala
appertaining to AKJ no.16 having an area 1.58 acres of land. It is further
disclosed that the land is vacate since from a long time of the complainant
and it has not been allotted to any person. Thus, it is crystal clear that the
complaint is civil in nature and for that, complaint case has been filed, in
which, the learned Court has been pleased to take cognizance under
Sections 341, 323, 504/34 of the Indian Penal Code and Section 3(1)(v) of
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. If
such a situation is there in the case in hand, the case of Hitesh Verma
(supra) is attracted, wherein, in paragraph nos. 14, 16 and 18, the
Hon'ble Supreme Court has held 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
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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
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."
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20. In the case of B. Venkateshwaran and others v. P.
Bakthavatchalam, reported in 2023 SCC OnLine SC 14, the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was again
considered by the Hon'ble Supreme Court and considering that the
ingredient of Sections 3(1) (v) and (va) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not made out, the
Hon'ble Supreme Court has interfered and quashed the entire criminal
proceedings. Paragraphs 3 and 4 of the said judgment read as under:
"3. We have heard Shri Nagamuthu, learned senior counsel
for the appellants - original accused and the respondent
appearing in person. We have also gone through the
complaint and considered the allegations in the complaint
made against the accused. Having considered the allegations
in the complaint and the material on record, it appears that
initiation of the criminal proceedings by the respondent
against the appellants - original accused for the offence under
the provisions of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 is nothing but an
abuse of process of law and the court and also provision of
the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989. It appears that a private dispute was
going on between the parties with respect to the illegal
construction. As per the allegations in the complaint, the
original complainant had purchased the vacant land and
constructed the building. It is alleged that adjacent to his
house and on the common pathway, the accused have
unlawfully encroached upon the pathway and started
constructing the temple and thereby have put up illegal
construction on his water pipeline, sewage pipeline and EB
Cable. In the entire complaint, there are no allegations that
the complainant is obstructed and/or interfered with
enjoyment of his right on his property deliberately and willfully
knowing that complainant belongs to SC/ST. From the material
on record, it appears that a civil dispute is converted into
criminal dispute and that too for the offence under the
provisions of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989. Prior to filing of the
complaint, it appears that the temple was already in existence
since many years. The complainant, who resides adjacent to
the temple, filed WP No. 1272 of 2007 before the Madras High
Court. Pursuant to the order passed by the High Court, the
Commissioner of Corporation, Chennai conducted the
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inspection and found that there was absolutely no
encroachment by the temple. It appears that thereafter the
complainant filed another Writ Petition No. 30326 of 2013
before the Madras High Court. The High Court directed the
official respondent to proceed with the inquiry against both
the parties. At this stage, it is required to be noted that it was
the case on behalf of the original accused that in fact
complainant had violated all building norms and had
constructed a building in blatant violation of the set-back rules
and had also put-up unauthorized construction on the ground
floor and first floor. That thereafter, the Temple filed writ
petition being No. 3322 of 2017 before the High Court. The
Division Bench of the High Court vide order dated 10.2.2017
stayed the proceedings against temple. It appears that
thereafter the complainant filed a private complaint for the
aforesaid offences under the provisions of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989. From the aforesaid, it seems that the private civil
dispute between the parties is converted into criminal
proceedings. Initiation of the criminal proceedings for the
offences under Sections 3(1)(v) and (va) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989, therefore, is nothing but an abuse of process of law and
Court. From the material on record, we are satisfied that no
case for the offences under Sections 3(1)(v) and (va) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is made out, even prima facie. None of
the ingredients of Sections 3(1)(v) and (va) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989 are made out and/or satisfied. Therefore, we are of the
firm opinion and view that in the facts and circumstances of
the case, the High Court ought to have quashed the criminal
proceedings in exercise of powers under Section 482 of the
Code of Criminal Procedure. The impugned judgment and
order passed by the High Court, therefore, is unsustainable
and the same deserves to be quashed and set aside and the
criminal proceedings initiated against the appellants deserves
to be quashed and set aside.
4. In view of the above and for the reasons stated above,
present appeal succeeds. The impugned judgment and order
passed by the High Court dismissing the writ petition is hereby
quashed and set aside. The criminal proceedings initiated
against the appellants, initiated by the respondent herein -
original complainant for the offence under Sections 3(1)(v)
and (va) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 including summons issued
by the learned Special Court in a private complaint filed by the
respondent herein are hereby quashed and set aside. Present
appeal is allowed accordingly."
21. In the case of Ramesh Chandra Vaishya v. State of Uttar
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Pradesh and another, reported in 2023 SCC OnLine SC 668, the
charge-sheet as well as criminal proceedings were under challenge and in
paragraph 18 of the said judgment, facts were taken care of by the Hon'ble
Supreme Court and in view of that, the Hon'ble Supreme Court has
interfered. Paragraphs 18 and 23 of the said judgment read as under:
"18. That apart, assuming arguendo that the appellant had
hurled caste related abuses at the complainant with a view to
insult or humiliate him, the same does not advance the case
of the complainant any further to bring it within the ambit of
section 3(1)(x) of the SC/ST Act. We have noted from the first
F.I.R. as well as the charge- sheet that the same makes no
reference to the utterances of the appellant during the course
of verbal altercation or to the caste to which the complainant
belonged, except for the allegation/observation that caste-
related abuses were hurled. The legislative intent seems to be
clear that every insult or intimidation for humiliation to a
person would not amount to an offence under section 3(1)(x)
of the SC/ST Act unless, of course, such insult or intimidation
is targeted at the victim because of he being a member of a
particular Scheduled Caste or Tribe. If one calls another an
idiot (bewaqoof) or a fool (murkh) or a thief (chor) in any
place within public view, this would obviously constitute an act
intended to insult or humiliate by user of abusive or offensive
language. Even if the same be directed generally to a person,
who happens to be a Scheduled Caste or Tribe, per se, it may
not be sufficient to attract section 3(1)(x) unless such words
are laced with casteist remarks. Since section 18 of the SC/ST
Act bars invocation of the court's jurisdiction under section
438, Cr. P.C. and having regard to the overriding effect of the
SC/ST Act over other laws, it is desirable that before an
accused is subjected to a trial for alleged commission of
offence under section 3(1)(x), the utterances made by him in
any place within public view are outlined, if not in the F.I.R.
(which is not required to be an encyclopaedia of all facts and
events), but at least in the charge-sheet (which is prepared
based either on statements of witnesses recorded in course of
investigation or otherwise) so as to enable the court to
ascertain whether the charge sheet makes out a case of an
offence under the SC/ST Act having been committed for
forming a proper opinion in the conspectus of the situation
before it, prior to taking cognisance of the offence. Even for
the limited test that has to be applied in a case of the present
nature, the charge-sheet dated 21st January, 2016 does not
make out any case of an offence having been committed by
the appellant under section 3(1)(x) warranting him to stand a
trial.
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23. Based on the facts and circumstances of the case, we
have little hesitation in holding that even though the appellant
might have abused the complainant but such abuse by itself
and without anything more does not warrant subjecting the
appellant to face a trial, particularly in the clear absence of
the ingredient of intentional insult of such a degree that it
could provoke a person to break public peace or commit any
other offence."
22. In view of the above judgments of the Hon'ble Supreme Court and
further coming to the facts of the present case, it is crystal clear that there
is land dispute between the parties and for that, complaint case has been
filed and the learned Court has been pleased to take cognizance. If such
dispute is brought before the High Court, the High Court is having more
responsibility to examine the things by way of reading the materials in
between the line so that any innocent person cannot be prosecuted in the
malicious prosecution. The facts of the present case clearly suggest that for
a civil dispute with regard to the land, the complaint case has been filed.
23. In view of the above facts, reasons and analysis, the entire criminal
proceeding arising out of SC/ST Case No.12 of 2021 including the order
taking cognizance dated 18.04.2022 passed by the learned Special Judge,
Jamtara, pending in that Court are, hereby, quashed.
24. Accordingly, this appeal is allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
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