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2004 DIGILAW 594 (JHR)

S. Manjar Hussain v. State of Jharkhand

2004-06-21

M.Y.EQBAL

body2004
Order Heard the parties. 2. In this application filed under section 482 Cr.P.C. the petitioner has prayed for quashing the order dated 2.12.2002 and the entire criminal proceeding pending before Chief Judicial Magistrate, Jamshedpur in C/1 case no. 1017/2002. 3. The aforesaid complaint case was filed by the complainant/opposite party nO.2 against four persons who are the officers of Tata Iron and Steel Company Ltd. (in short TISCO) including the petitioner. The complainant in the complaint petition alleged inter alia that she being poor lady approached M/s TISCO for allotment of shop at Sakchi Market, Jamshedpur. Accordingly, TISCO allotted two shops at Potato line Sakchi market vide his letter dated 1.9.2000. The complainant alleged to have been making payment of rent and other charges but possession of the shops could not be given to her. However, on 11.6.2002 on verbal agreement another shop was allotted to her by the TISCO being shop no. 5 situated at line no. 9, Bata Chowk, Sakchi market, Jamshedpur and since then the complainant has been in possession of the shop. It is alleged that suddenly on 20.8.2002 the complainant, her husband and her mother-in-law were preparing to get down the shutter of the said shop, the accused persons including the petitioner stormed into the said shop and asked the complainant to vacate the shop. All the accused persons including the petitioner threatened the complainant to evict her by force. The complainant reported the matter to the S.D.J.M. Jamshedpur for initiation of proceeding under section 144 Cr.P.C. It is alleged that on 28.10.2002 some security forces came to the shop of the complainant in jeep and trucks and all of them entered into the shop and got the articles loaded in the truck. The accused persons including the petitioner therefore committed offence under section 147,148,149,461,379/364 of the I.P.C. and Section 3 of the Schedule Caste and Schedule Tribe Atrocities Act. 4. The Chief Judicial Magistrate, Jamshedpur by the impugned order dated 2.12.2002 came to the conclusion that no case under the provisions of Atrocities Act is made out but a case under section 3791 323 I.P.C. is made out an'd accordingly cognizance has been taken. 5. Learned counsel for the petitioner in course of argument drawn my attention to Annexure-4 to the application which is a certified copy of Plaint of Title Suit No. 128 of 2002. 5. Learned counsel for the petitioner in course of argument drawn my attention to Annexure-4 to the application which is a certified copy of Plaint of Title Suit No. 128 of 2002. Learned counsel submitted that the suit was filed on 21.11.2002 for declaration of title in respect of the said shop and in the alternative for recovery of possession in the event she is dispossessed from the shop in question during pendency of the suit. Learned counsel submitted that in the plaint it is admitted by the complainant that on 21.11.2002 she was in possession of the shop while in the complaint petition it was alleged that on 28.8.2002 she was dispossessed from the shop premises. I find much force in the submission of the learned counsel. Moreover in the complaint the complainant has alleged that there was verbal allotment of shop and no chit of paper was produced by the complainant to show that prima facie she is in possession of the shop as an allottee. 6. It is well settled that judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. Reference may be made to the decision of the Supreme Court in the case of "Punjab National Bank vs. Suendra Prasad Singh" (AIR) 1992 SC1815. It is equally well settled that criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the fact of the case and law applicable thereto. It is not that Magistrate is silent spectator at the time of recording preliminary evidence and issuing summons. 7. In the instant case, from perusal of the complaint petition it will appear that there is no specific allegation against any of the accused persons including the petitioner. Simply in the column of "name of the accused person", name of the petitioners has been disclosed. Moreover, there is not even iota of evidence to show that complainant was allotted shop and she was dispossessed on the alleged day. Simply in the column of "name of the accused person", name of the petitioners has been disclosed. Moreover, there is not even iota of evidence to show that complainant was allotted shop and she was dispossessed on the alleged day. The said allegation is falsified from the suit filed by the complainant much after the alleged date of occurrence. All these facts taking together do not make out prima facie case against the petitioner. This aspect of the matter has not been considered by the Magistrate while taking cognizance of the offence under section 379, 323, I.P.C. The order of cognizance and the entire criminal proceeding therefore, cannot be sustained in law. 8. With the aforesaid observation, the entire criminal proceeding of C/1 case no. 1017 of 2002 pending before C.J.M. Jamshedpur and the order of cognizance dated 2.12.2002 are quashed.