Mangi Lal And Ors vs State
2021 Latest Caselaw 3046 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 118/2011

1.Mangi Lal S/o. Teja Ram, by caste Paliwal, aged 46 years.

2.Suresh S/o. Hari Ram, by caste Paliwal, aged 24 years.

3.Sripaal S/o. Hari Ram, by caste Paliwal, aged 22 years.

All residents of Village Mungra, Tehsil Pachpadra, District Barmer

(Raj.)

----Appellants Versus State of Rajasthan

----Respondent

For Appellant(s) : Mr. Vinay Jain & Mr. Darshan Jain For Respondent(s) : Mr. SS Rajpurohit, PP Mr. Jitendra Ojha, for the complainant

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

04/02/2021 In wake of onslaught of COVID-19, abundant caution is being

taken while hearing the matters in Court.

The matter comes up on application for early hearing.

Counsel for the appellants submit that there is urgency in

matter as appellant no.3 Shri Pal S/o. Hari Ram has been selected

on the post of School Lecturer (Geography) after undergoing

Lecturer (School Education), Examination, 2018 conducted by

Rajasthan Public Service Commission, Ajmer, having Roll

No.599118 and has Merit position No.167. Counsel for the

appellant further submits that after due selection, appellant no.3

Shri Pal has been called for counselling vide Letter of Counselling

(2 of 14) [CRLA-118/2011]

dated 26.09.2020 and counselling is schedule to take place on

09.02.2021.

Looking into heavy Board, though, finally hearing of case is

not likely to take place for long, however, taking into consideration

the fact that appellant no.3, who is well educated young boy and

has come in merit and his counselling is schedule to take place on

09.02.2021 shall be deprived of right to employment in case the

appeal is not finally heard on priority.

Learned Public Prosecutor as well as counsel for the

complainant agrees to the fact that looking into ongoing selection

process and if final hearing do not take place, it shall have direct

impact on career of accused-appellant no.3. Thus, with the

consent of counsel for the parties the matter is agreed to be heard

finally.

This Court after hearing such submissions is of considered

view that looking into record of case as well as giving credence to

the fact that appellant no.3 Shri Pal has been selected as School

Lecturer (Geography), this Court is inclined to hear the case finally

on merits today itself.

Counsel for the appellants submit that the allegation against

present appellants is that while they were living alongwith their

family members at village Mungra, Tehsil Padhpadra, District

Barmer, a dispute arose between them and complainant regarding

the adjacent plot, which resulted in filing of complaint on

28.5.2008, whereupon a case FIR No.307/08 came to be

registered at Police Station, Balora for the offence under Sections

143, 323, 427, 452 IPC and Section 3(i)(x) of SC/ST Act.

(3 of 14) [CRLA-118/2011]

Counsel for the appellants submit that then the trial

commenced for offence under Sections 448/34, 323 IPC and

Section 3(1)(v) of SC/ST (Prevention of Atrocities) Act.

At the conclusion of trial, the learned Special Judge, SC/ST

Act Cases (Sessions Court), Balotra, District Barmer vide

judgment dated 27.01.2011 proceeded to convict and sentence

the appellants as follows :

U/s.448/34 IPC Six months' S.I. and a fine of Rs.100/- in default of payment of fine to undergo 15 days SI each.

U/s.323 IPC Six months' S.I. and a fine of Rs.100/- in default of payment of fine to undergo 15 days SI each.

U/s.3(1)(v) of SC/ST Act One year's SI and a fine of Rs.500/- in default of payment of fine to undergo one month's SI each.

All the sentences were directed to run concurrently.

The said judgment of conviction is under challenge by way of

this appeal.

Counsel for the appellants submit that civil suits were going

on between present appellants. Complainant-Shiv Lal S/o. Babulal

and one Babulal filed a civil suit bearing No.5/08, wherein

principal prayer was for way in the land in-question, which was

being sought by the complainant. Copy of civil proceedings are

annexed alongwith record as Exhibit-D/8 to Exhibit-D/24. Counsel

for the appellants submit that another suit was filed by appellant

Suresh against Babulal for the same disputed land. Counsel for

the appellant submits that in suit filed Babulal, Commissioner after

making inspection made a report on 28.1.2008 reflecting status

(4 of 14) [CRLA-118/2011]

against complainant's property, thus, as a counter-blast to that

the present FIR was lodged on 29.01.2008. Counsel for the

appellants submit that conviction under Section 3(1)(v) of SC/ST

Act is not attracted in present case as no dis-possession of

complainant has been caused by present appellants. More so, the

issue was strictly being adjudicated by competent courts in the

aforementioned civil suits filed by both the parties against each

other. Counsel for the appellants have drawn attention of this

Court to the statement of Dr. P.R. Khichi (PW-6). In cross-

examination the doctor has observed that the injuries in-question

can be self-caused, as they are minor. Counsel for the appellants

have further drawn attention of this Court to statement of Babulal

(PW-8), who is Investigating Officer of the case. The I.O., deposed

that on inspection of site, he did not find any indication of incident

in-question. The I.O., has categorically said that he did not find

any indication at the site which could reflect that the incident

in-question had happened there. Counsel for the appellants have

further taken this Court to the statement of Kaluram (PW-9).

Counsel for the appellant submits that since it was enclosed area

of dispute between two neighbours, therefore, it was not a public

place. Counsel for the appellants submit that counter-blast theory

is clearly applicable in the present case. Counsel for the appellants

further submit that joint deposition of the I.O., and doctor

indicates that the incident never occurred. Counsel for the

appellants also submitted that there is no independent witness to

support story of prosecution. Counsel for the appellants read over

contents of civil suits, which are part of record, filed by either of

the parties against each other (Exhibit D-7 to Exhibit-D-24).

(5 of 14) [CRLA-118/2011]

Counsel for the appellants submit that interference in

enjoyment of right over any land or water is not made out, thus,

prayed that the appeal deserves to be allowed.

Counsel for the appellants have relied upon the judgment of

Gorige Pentaiah Vs. State of Andhra Pradesh & Ors.,

reported in (2008) 12 SCC 531, relevant para whereof reads as

follows :-

"3. The brief facts which are necessary to dispose of this appeal are recapitulated as under:

Bakaram Eswar, respondent No. 3 herein, on 15.6.2004, filed a complaint against the appellant in the Police Station, Uppal, Hyderabad which reads as under:

To The Sub-Inspector of Police, Uppal.

Subject: One Gorige Pentaiah s/o Bakkaiah of Uppal Village has come to our 3200 sq. yards of land in Sy. No. 80 of Peerjadiguda with his men at 11.30 in the night and demolished the wall and went away. You are requested to take action. Apart from that though on 27.5.2004 said Gorige Pentaiah s/o Bakkaia abused us with the name of our caste no action is taken against them. I am requesting you to take action against the said people. I am filing all xerox copies of documents to show my rights in the said land. Said Pentaiah obtained pass books and pahanies in his name illegally in respect of our land in Sy. No. 80 and has been harassing us. R.D.O. has stayed the said entries. You are requested to take action against the said pentaiah and his men who demolished the compounded wall of our plot. We are also afraid that they may come at any time and kill us. Said Pentaiah drove our security guards Ramulu and Sudhakar and demolished the wall. You are requested to take action against the said person.

Sd/-

B. Eswar (Bakara Eswar) S/o Rajaiah Peerjadiguda Village, Ghatkesar Mandal, RR District.

4. The appellant aggrieved by registration of the criminal case, invoked inherent powers of the court by filing a petition under Section 482 of Code of Criminal Procedure before the High Court for quashing of the proceedings emanating from Crime No. 281 of 2004 Police Station Uppal, Hyderabad. The High Court, by impugned judgment dated 19.9.2006, dismissed the said petition. Aggrieved by the

(6 of 14) [CRLA-118/2011]

dismissal of the petition by the High Court, present appeal, by special leave, is preferred by the appellant.

5. Learned Counsel appearing for the appellant submitted that even if all the allegations incorporated in the complaint are taken as true, even then, no offence is made out under Section 3(1)(x) of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act") and under Sections 447, 427, 506 of the Indian Penal Code. As far as Section 3(1)(x) of the Act is concerned, it reads as under:

"3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe:-

(i)-(ix)

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.

6. In the instant case, the allegation of respondent No. 3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused- appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.

11. On careful consideration of the prayer made in the second suit, it becomes abundantly clear that respondent No. 3 was not even in possession of the suit property on the date of incident and this fact has not been disputed by the learned Counsel appearing for the State of Andhra Pradesh. When respondent No. 3 was not even in possession of the land in question, the allegation made in the complaint, that the appellant demolished the wall on 14.6.2004, could not arise. The allegations are totally baseless and without any foundation. On the face of it, it looks that the criminal complaint filed by the respondent No. 3 was totally false and frivolous. The complaint was filed with an oblique motive. In this view of the matter, charges under Sections 427 and 447 are also wholly illegal and unsustainable in law. In our considered view, in a case of this nature, the High Court ought to have exercised its jurisdiction under Section 482 Cr.P.C. and quashed the complaint.

(7 of 14) [CRLA-118/2011]

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. DPP [1964] AC 1254, 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 DPP v. Humphrys [1977] AC 1 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 court's power to prevent such abuse is of great constitutional importance and should be jealously preserved.

14. In R.P. Kapur v. State of Punjab this Court summarized 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.

15. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

16. This Court in State of Karnataka v. L. Muniswamy observed that the wholesome power under Section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A

(8 of 14) [CRLA-118/2011]

court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this Court and other courts.

17. In Chandrapal Singh and Ors. v. Maharaj Singh , in a landlord and tenant matter where criminal proceedings had been initiated, this Court observed in para 1 at page 467 as under:

"1. A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous." The court noticed that the tendency of perjury is very much on the increase. Unless the courts come down heavily upon such persons, the whole judicial process would come to ridicule. The court also observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court.

18. This Court in Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre observed in para 7 as under: (SCC p.695) "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.

19. In State of Haryana and Ors v. Bhajan Lal this Court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or

(9 of 14) [CRLA-118/2011]

rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: (SCC pp 378-79 para 102) "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge".

20. This Court in Janata Dal Vs. H.S. Chowdhary observed thus :(SCC p. 355, para 132) "132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.

(10 of 14) [CRLA-118/2011]

21. In G. Sagar Suri and Anr. v. State of UP, this Court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature.

22. This Court in Roy V.D. v. State of Kerala observed thus: (SCC p.597, para 18) "18. It is well settled that the power under Section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of justice.

23. This Court in Zandu Pharmaceutical Works Ltd. and Ors. v. Mohd. Sharaful Haque observed thus: (SCC p. 128, para 8) "8.... It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

24. In Indian Oil Corporation v. NEPC India Ltd this Court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The court 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 : (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."

25. The question before us is - whether the case of the appellants comes under any of the categories enumerated in Bhajan Lal (supra)? Is it a case where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in entirety, do not make out a case against the accused under Sections 420, 467 and 120B IPC? For determination of the

(11 of 14) [CRLA-118/2011]

question it becomes relevant to note the nature of the offences alleged against the appellants, the ingredients of the offences and the averments made in the FIR/complaint.

26. A three judge Bench of this Court in Inder Mohan Goswami and Anr. v. State of Uttaranchal has examined scope and ambit of Section 482 of the Criminal Procedure Code. The court in the said case observed that inherent powers under Section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be fully justified in preventing injustice by invoking inherent powers of the court.

27. In our considered opinion, filing of such a frivolous complaint in the instant case is a total abuse of process of law. Consequently, we set-aside the impugned judgment passed by the High Court and quash the complaint emanating from Crime No. 281 of 2004, Police Station, Uppal, Hyderabad."

Counsel for the appellants have further relied upon the

judgment of Hitesh Verma Vs. The State of Uttarakhand &

Ors., passed in Criminal Appeal No.707 of 2020 (arising out of

SLP (Criminal) No.3585 of 2020), decided on 05.11.2020, relevant

portion of which reads as follows :-

"23. This Court in a judgment reported as Ishwar Pratap Singh and Ors. v. State of Uttar Pradesh and Anr.

MANU/SC/1658/2017MANU/SC/1658/2017 : (2018) 13 SCC 612 held that there is no prohibition under the law for quashing the charge-sheet in part. In a petition filed Under Section 482 of the Code, the High Court is required to examine as to whether its intervention is required for prevention of abuse of process of law or otherwise to secure the ends of justice. The Court held as under:

9. Having regard to the settled legal position on external interference in investigation and the specific facts of this case, we are of the view that the High Court ought to have exercised its jurisdiction Under Section 482 Code of Criminal Procedure to secure the ends of justice. There is no prohibition under law for quashing a charge-sheet in part. A person may be Accused of several offences under different penal statutes, as in the instant

(12 of 14) [CRLA-118/2011]

case. He could be aggrieved of prosecution only on a particular charge or charges, on any ground available to him in law. Under Section 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the Code of Criminal Procedure or for prevention of abuse of process, or otherwise to secure the ends of justice. A charge-

sheet filed at the dictate of somebody other than the police would amount to abuse of the process of law and hence the High Court ought to have exercised its inherent powers Under Section 482 to the extent of the abuse. There is no requirement that the charge- sheet has to be quashed as a whole and not in part. Accordingly, this appeal is allowed. The supplementary report filed by the police, at the direction of the Commission, is quashed.

24. In view of the above facts, we find that the charges against the Appellant Under Section 3(1)(r) of the Act are not made out. Consequently, the charge-sheet to that extent is quashed. The appeal is disposed of in the above terms.

25. The FIR in respect of other offences will be tried by the competent Court in accordance with law along with the criminal case3, though separately initiated, for the reason that it relates to interparty dispute and is in respect of same subject matter of property, despite of the fact that two different dates of the incident have been provided by the parties."

Learned Public Prosecutor and counsel for the complainant

opposed the submissions.

This Court after perusing record and looking into merits of

case finds that case against present appellants has not been

proved beyond reasonable doubt.

A bare reading of statements of Dr. P.R. Khichi (PW-6) and

Babulal (PW-8) creates suspicion in the mind of Court regarding

the prosecution story. The I.O. in his statement submitted that no

(13 of 14) [CRLA-118/2011]

such incident was either reflected or indicated at the site and that

does not go well with the version of complainant. The minor

injuries, which could be self-caused, is reflection of incident being

false and concocted one. This Court on careful perusal of civil

suits, which is on record alongwith application under Order 39

Rule 1 & 2 CPC finds that an aggravated property dispute was

existing between both the parties. This Court also is of the opinion

that civil suits were between the parties was dealing with property

in-question and actually no wrongful dispossession happened as

admittedly the respondent is in possession of disputed property.

This Court also takes note of the statement given by counsel for

the appellants that the suit filed by the appellants have been

abandoned by them and they never claimed right on the disputed

lane, thus, question of wrongful dispossession actually never

occurred.

This Court while accepting proposition of counsel for the

appellants that Commissioner Report dated 28.1.2008 adversely

affecting the complainant resulting in counter-blast complaint on

29.1.2008 and also while taking into account that the prosecution

having failed to prove its case beyond reasonable doubt concludes

that the benefit of same has to go in favour of the present

appellants.

Accordingly, the criminal appeal is allowed. Impugned

judgment dated 27.01.2011 passed by learned Special Judge,

SC/ST Act Case, Balotra, District Barmer in Sessions Case

No.20/2008 is quashed and set aside and the appellants are

acquitted of all the offences alleged against them. Appellants were

on bail, therefore, they need not to surrender. Their bail-bond

(14 of 14) [CRLA-118/2011]

stands discharged. They shall be released forthwith if not wanted

in any other case.

The record of trial court be sent back forthwith.

(DR. PUSHPENDRA SINGH BHATI),J.

192-Sanjay/-

Powered by TCPDF (www.tcpdf.org)