Suresh Kumar Sharma And Others vs State Of Odisha And Another
2023 Latest Caselaw 3759 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                    CRLMC No.593 of 2022

  Suresh Kumar Sharma and Others     ....           Petitioners
                            Mr. Patitapaban Panda, Advocate



                              -Versus-


  State of Odisha and Another          ....       Opposite Parties
                                       Mr. S.S. Mohapatra, ASC
                  Mr. Krushna Ch. Dash, Advocate for O.P. No.2
            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:19.04.2023

1.

Instant writ petition under Section 482 Cr.P.C. is at the behest of the petitioner for quashing of the impugned order of cognizance dated 16th January, 2022 under Annexure-11 passed in G.R. Case No.101 of 2016 by the learned J.M.F.C., Banarpal on the grounds inter alia that the allegations in the complaint (FIR) are outrightly false and far from truth and have been levelled against them out of personal vendetta and hence, impugned order of cognizance of the alleged offences to be bad in law.

2. In fact, the opposite party lodged the complaint in ICC Case No.01 of 2016 in the Court of learned S.D.J.M., Angul, later to which, Angul Industrial P.S. (NISA) Case No.0013 was registered on 25th January, 2016 and thereafter, the chargesheet was filed against the petitioners under Sections 147, 452, 341, 506, 427,201 and 149 IPC, whereafter, the impugned order under Annexure-11 was passed. In so far as the allegations are concerned, as per the FIR, the petitioners as the officials of M/s. JSPL said to have forcibly entered into the house of the complainant and dispossessed him and his family from there and illegally

Suresh Kumar Sharma and Others Vrs. State of Odisha and Another

demolished it with the help of JCBs in connection with construction of a road. It has been alleged that the asbestos roofed house was standing over plot No.353/564 under khata No.77/54 corresponding to Hal plot No.917 which was dismantled at the instance of the petitioners. On receiving the complaint, by the order of the learned court below, Angul Industrial P.S. (NISA) Case No.0013 was registered which finally resulted in submission of chargesheet. As early stated, on receiving the chargesheet, the learned J.M.F.C., Banarpal took cognizance of the alleged offences by order dated 16th January, 2022 vide Annexure-11 which is currently under challenge.

3. Heard Mr. Panda, learned counsel for the petitioners, Mr. Mohapatra, learned ASC for the State-opposite party No.1 and Mr. Dash, learned counsel for opposite party No.2, namely, informant.

4. Mr. Panda, learned counsel for the petitioners submits that there is discrepancy in the facts alleged in the complaint (FIR) and statements of witnesses recorded under Section 161 Cr.P.C. which has falsified the allegation of the complainant and therefore, the prosecution story is not believable, however, the local police, after completion of investigation, erroneously submitted the chargesheet without properly verifying the land acquisition records. It is further submitted that the complaint was filed due to personal grudge since an FIR was lodged and Industrial P.S. (NISA) Case No.17 of 2014 was registered against the complainant and five others which corresponds to G.R. Case No.149 of 2014 pending in the file of learned J.M.F.C., Chendipada which was with respect to missing of five numbers of cheques lying in the office of M/s.JSPL. It is alleged that despite acquisition of Ac.0.09 dec. of land, the complainant managed to record Ac.0.13 dec. by playing mischief and that too when, for the acquired land, he had

Suresh Kumar Sharma and Others Vrs. State of Odisha and Another

received compensation. With regard to existing of asbestos roofed house over the schedule land, Mr. Panda, learned counsel for the petitioners submits that such claim of the complainant runs counter to the reports submitted by the Collector, Angul in connection with PIL No.83 of 2016 and hence, therefore, the investigation has not been properly conducted which ultimately led to the submission of chargesheet against the petitioners. With the above facts, Mr. Panda, learned counsel for the petitioners contends that the impugned order of cognizance under Annexure- 11 is not sustainable in law.

5. On the other hand Mr. Mohapatra, learned ASC for the State- opposite party No.1 submits that the investigation revealed the alleged mischief committed by the petitioners in connection with which complaint was filed by opposite party No.2 and since the chargesheet was filed thereafter, the ground which has presently been raised by the petitioners are to be considered during enquiry and trial and as the prima facie case is made out and in view of the fact that the learned court below has taken cognizance of alleged offences, it should not be interfered with in exercise of the Court's inherent jurisdiction. Mr. Dash, learned counsel for opposite party No.2 submitted that the complaint was filed for the alleged overt acts committed by the petitioners and details of the incident since found narrated therein and after the investigation, it stood vindicated, the petitioners being parties to the incident, at whose instance, the house of the complainant was demolished and he was dispossessed with his family, a prima facie case is said to have been made out for enquiry and trial and therefore, the impugned order cognizance under Annexure-11 calls for no interference.

6. Gone through the contents of the FIR. As per the allegations of opposite party No.2, on the date of occurrence, the petitioners as

Suresh Kumar Sharma and Others Vrs. State of Odisha and Another

the officials of M/s. JSPL reached at the spot and thereafter, committed the excess by manhandling him as well as his other family members, removed the household articles forcibly and demolished the asbestos roofed house standing over the schedule land. The said allegation was enquired into and investigated upon which finally culminated in the submission of chargesheet. In so far as the schedule land is concerned, as it made to suggest from the chargesheet, the same was acquired by M/s.JSPL but no compensation had been paid to the complainant for such acquisition. In other words, the acquisition of land measured Ac.0.09 dec. leaving Ac.0.04 dec. with the complainant, whereupon, it is claimed that a cement concrete house with asbestos roof was there which is alleged to be demolished by the petitioners. In course of investigation, it was revealed that during the road construction work, petitioner Nos.4 and 6 carried out measurement and stating that the house of opposite party No.2 to be lying inside the land acquired by M/s. JSPL, however, without any report to the concerned authority, on their own, both of them and other petitioners forcibly entered inside the house of the complainant and thereafter, demolished the house in question.

7. Mr. Panda, learned counsel for the petitioners submits that in PIL No.83 of 2016, the action taken reports were submitted by the Collector, Angul, wherein, it has been admitted that opposite party No.2 was awarded compensation only in respect of Ac.0.09 dec. and not Ac.0.04 dec. to which he is entitled to but further revealed that there was no house or any structure over the schedule land since 2009 and even prior to or after construction of road by M/s. JSPL and therefore, such a claim by opposite party No.2 to be false and fabricated. The copies of the said reports are at Annexures-4 and 5 which have been referred to by

Suresh Kumar Sharma and Others Vrs. State of Odisha and Another

Mr. Panda, Admittedly, in both the said reports, the status of the case land is shown as a road with no house or structure standing over the same. As per Annexure-4, it has been reported that no such structure was found during and in course of joint demarcation, whereas, vide Annexure-5 while admitting the fact that opposite party No.2 entitled to receive compensation for the rest Ac.0.04 dec., it was reported that there was no house or structure as on the date of possession or even prior to or after construction of road by M/s, JSPL in 2009. In fact, Annexures-4 and 5 contradicted the conclusion of the local police about the existence of a house which was alleged to be demolished at the instance of the petitioners. In fact, the chargesheet revealed that two of the petitioners were present at the time of measurement and both of them found possession of the schedule land with M/s. JSPL but without any intimation to the local Administration, the house situated over the same was demolished. From the chargesheet and considering the submissions of Mr. Panda, learned counsel for the petitioners, it is made to suggest that though the land in question was in the possession of M/s JSPL, it had not been acquired as the acquisition was only in respect of Ac.0.09 dec. Whether there was any house standing over the schedule land or not is a matter of enquiry considering the conflicting claims. As per the chargesheet, an asbestos roofed house situated over the schedule land, however, referring to Annexures-4 and 5, it is countered. Such a disputed question of fact can only be adjudicated upon by the learned court below in contrast to the claim of the local police in juxtaposition to Annexures-4 and 5 which are the action taken reports submitted in PIL No.83 of 2016 in case received as defence evidence. Rather, considering Annexures-4 and 5, the Court finds that the local Administration admitted the fact regarding acquisition of Ac.0.09 dec. only and not the whole plot of opposite party No.2. If at all

Suresh Kumar Sharma and Others Vrs. State of Odisha and Another

any such structure was there over the schedule land or it was put up later on over Ac.0.04 dec. of land in possession of opposite party No.2 opposing the claim of local Administration as revealed from Annexures-4 and 5 is a matter of examination for which the materials collected during investigation shall have to be examined and sincerely scrutinized. Irrespective of the conduct of opposite party No,2 that he had applied for conversation of land for the entire area of Ac.0.22 dec., which is not relevant for the present purpose, the Court is of the view that since after investigation, a conclusion has been reached at that an asbestos roofed house was standing over the schedule land in possession of opposite party No.2 though it had been acquired by M/s, JSPL but without any compensation paid in respect of a part and in that connection, the petitioners alleged to have committed the mischief, whether it was a judgment of error or mischief as it has been alleged by opposite party No.2 is a matter to be examined and thrashed out during enquiry.

8. The law is well settled that on a bare consideration of FIR and complaint, as the case may be, if no cognizable offence is made out; or no prima facie case is revealed; or if any such FIR or complaint is lodged or filed in order to wreak vengeance, inherent jurisdiction under Section 482 Cr.P.C. may be exercised in order to do complete justice. In this regard, the Apex Court in State of Haryana and others Vrs. Ch. Bhajan Lal and others reported in AIR 1992 SC 604 has laid down the guidelines and illustrations though not exhaustive which are to be adhered to at the time of exercise of inherent power under Section 482 Cr.P.C. In the instant case, the petitioners alleged that opposite party No.2 and five others were responsible for missing of some cheques and they had been arrested after the FIR was lodged by M/s JSPL and registration of Angul Industrial PS (NISA) Case

Suresh Kumar Sharma and Others Vrs. State of Odisha and Another

No.17 of 2014 corresponding to G.R. Case No.145 of 2014. The said incident was reported in 2014, whereas, the occurrence for which the complaint was filed by opposite party No.2 has taken place on 28th October, 2015, almost after one year and nine months and therefore, how far it would be right to allege that the petitioners to have been falsely implicated at the instance of opposite party No.2 and the FIR to be an outcome of grudge is again a matter of scrutiny. The truthfulness and otherwise of the allegations by opposite party No.2 in the complaint, notwithstanding submission of the chargesheet is to be examined during enquiry. Since the chargesheet is filed with a conclusion that a house was standing over the case land at the relevant point of time and the petitioners to be responsible for its demolition which was based on self-decision without any intimation to the local Administration, the Court is of the view that a prima facie case is made out for enquiry by the learned court below.

9. Considering the alleged conduct of the petitioners, as revealed from the FIR, as to if all the petitioners or some of them present at the spot to be responsible is a matter needs examination by the learned court below. As per the chargesheet, petitioner Nos.4 and 6 were present at the spot and a measurement was held, whereafter, the alleged demolition was carried out. Whether all the petitioners or one or two of them to be responsible for the decision to demolish the alleged house over the schedule land is required to be ascertained. The involvement of petitioners though alleged and all of them have been chargesheeted, whether they are directly or indirectly responsible or some of them not to be responsible at all is to be ascertained during enquiry by looking at the evidence as a whole. The decision of the petitioners whether to be an error in judgment should also be examined as the demolition could be on the premise that the schedule land to

Suresh Kumar Sharma and Others Vrs. State of Odisha and Another

have been acquired by M/s. JSPL. At the same time, the Court finds that some of the petitioners are highly placed officials of M/s. JSPL and they may not be involved directly and the same needs an attention. Such a view is expressed by the Court for the reason that it is quite unusual for any high placed official of a company to be present at the spot or to be directly responsible for any such action which is taken at the ground level. That apart, the complaint (FIR) alleged that all the petitioners did the mischief and committed the overt act during and in course of which filthy language was used by them by showing improper conduct which may even be an exaggeration. Nevertheless, since the chargesheet is filed, the Court is constrained to hold that a prima facie case is made out vis-à-vis the alleged incident dated 28th October, 2015 but there may even be a possibility of judgmental error or non- involvement of some of the petitioners directly and especially, those who are highly placed officials of M/s. JSPL.

10. Accordingly, it is ordered.

11. In the result, the CRLMC stands disposed of with the liberty granted to the petitioners to claim discharge on the plea of no direct involvement or absence of participation with the requisite mens rea or on such other ground and in the event any such application is received from them, the learned J.M.F.C., Banarpal shall do well to examine the evidence as a whole and thereafter to pass necessary orders thereon without being influenced by any of the observations made herein above.

(R.K. Pattanaik) Judge TUDU