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Punjab High Court · body

2007 DIGILAW 2122 (PNJ)

Kuldip Raj Mahajan v. Hukam Chand

2007-12-05

L.N.MITTAL

body2007
Judgment L.N.Mittal, J. 1. Kuldip Raj Mahajan has approached this Court by way of instant petition under Section 482 of the Code of Criminal Procedure (in short `the Code) for quashing of criminal complaint No. 130 of 2000 instituted by Hukam Chand-respondent against the petitioner in the court of Judicial Magistrate Ist Class, Hisar (Annexure P-1) under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short `the Act) and Section 506 of the Indian Penal Code, along with summoning order dated 19.9.2002 (Annexure P-2). 2. The respondent inter alia alleged in the impugned complaint Annexure P-1 that he belongs to Dhanak caste which is a Scheduled Caste whereas the petitioner belongs to Vaish caste which is a higher caste. The respondent, at the relevant time, was working as Head Cashier in State Bank of Patiala, Branch Mayar, District Hisar where the petitioner was posted as Branch Manager. On 9.9.19999, at about 4.45 p.m., the petitioner insulted the respondent in the presence of other employees and abused him by his caste. Petitioners utterances demeaning the respondent by caste have been quoted in paragraph 4 of the complaint. Tilak Raj Khurana, Cashier Incharge and also Jag Ram and Wazir Singh, Watchmen-cum-Peons were present there at that time. They objected to the offensive utterances made by the petitioner, but the petitioner continued with his abusive language. On 10.9.1999, the respondent reported this matter to the higher authorities which further annoyed the petitioner, who ran towards respondent to assault him. Same witnesses saved the respondent. Petitioner was using abusive caste based language against the respondent and threatened to implicate him in a false case and to get him removed from service. The petitioner extended threat to the life of the respondent. The respondent filed a complaint in Police Station Hisar and later on made representation on 29.10.1999 to Inspector General of Police, Hisar Range, Hisar. Another representation was made to the Inspector General of Police on 9.11.1999. Ultimately FIR No. 11 dated 8.1.2000 was registered, but the police, even thereafter, did not take any action nor arrested the petitioner. On 23.4.2000, the respondent went to the Police Station to inquire about the progress in the matter and was told that due to political pressure, police officials were unable to arrest the petitioner. Thereupon the respondent filed the impugned complaint dated 24.4.2000 (Annexure P-1). On 23.4.2000, the respondent went to the Police Station to inquire about the progress in the matter and was told that due to political pressure, police officials were unable to arrest the petitioner. Thereupon the respondent filed the impugned complaint dated 24.4.2000 (Annexure P-1). After recording of preliminary evidence, the learned Magistrate, vide impugned order dated 19.9.2002 (Annexure P-2), summoned the petitioner as accused for offence under Section 3 of the Act and Section 506 of the Indian Penal Code. Feeling aggrieved, the petitioner has filed the instant petition for quashing of the impugned complaint and summoning order. 3. Learned counsel for the petitioner contended that the impugned complaint is mala fide and false. It was pointed out that the petitioner as Branch Manager, had to re-allocate the work among the staff when one official was promoted and transferred. Accordingly, the petitioner vide order dated 20.4.1998 (Annexure P-3) assigned additional duty to the respondent to write the Day Book of the Bank and to send all statements, schedules and weekly statement of affairs pertaining to the Day Book seat, in addition to his existing duties. It was contended that the respondent did not relish the additional duty and did not perform the same. The petitioner was forced to write letter dated 30.5.1998 (Annexure P-4) to the respondent intimating that he had discontinued writing the Day Book which was pending since 21.5.1998 and the respondent was not writing the Day Book inspite of repeated requests. The respondent was accordingly again requested to write the Day Book. Learned counsel for the petitioner submitted that in spite of letter Annexure P-4, the respondent did not do his assigned work and the petitioner was accordingly forced to write him another letter dated 18.9.1998 (Annexure P-5) intimating that on 16.9.1998, the respondent, by an office order, was advised to send weekly statement of affairs dated 13.8.1998, but the respondent did not care to send the same. Explanation of the respondent was accordingly called for the said lapse. The respondent sent reply Annexure P-6 to the petitioner mentioning that the petitioners letter Annexure P-5 was by way of mischief and partiality and the respondent had sent the petitioners letter Annexure P-5 to Central Officer of the Union for proper reply and on receipt of reply from the Union, the same shall be submitted to the petitioner. The respondent sent reply Annexure P-6 to the petitioner mentioning that the petitioners letter Annexure P-5 was by way of mischief and partiality and the respondent had sent the petitioners letter Annexure P-5 to Central Officer of the Union for proper reply and on receipt of reply from the Union, the same shall be submitted to the petitioner. Thereupon the petitioner referred the matter to the higher authorities against the respondent by writing letter dated 21.9.1998 (Annexure P-7). The petitioner sent another letter dated 24.9.1998 (Annexure P-8) to the higher authorities complaining that the respondent was not performing his duty and had stopped writing the Day Book after 13.8.1998 and did not care to write the same in spite of repeated requests and the respondent was also creating nuisance in the Branch. 4. Learned counsel for the petitioner vehemently contended that the respondent was not performing his duties and the petitioner had written the above letters to the respondent and higher authorities about non-performance of the duty by the respondent and as a counter-blast, the respondent instituted the impugned complaint falsely against the petitioner. This contention alone, if considered in isolation, perhaps might not have been sufficient to quash the impugned complaint and summoning order, but considered cumulatively along with other contentions to be discussed hereafter, the contention merits acceptance. Even the respondent has alleged in the impugned complaint, as well as in reply to the instant petition, that he was feeling aggrieved against the petitioner in day to day working in the Bank. The respondent has not denied the aforesaid letters Annexure P-3 to P-8. These would show that the petitioner was impressing upon the respondent to perform his additional duty of writing Day Book etc., but the respondent had the notion that the petitioner was intentionally harassing him by assigning this additional duty. It was in fact even the stand of learned counsel for the respondent during the course of arguments, that no such additional duty of writing Day Book etc. could be assigned to the respondent. In this regard, reference was made to duties of Head Cashier as mentioned in Annexure R-5. However, this stand of the respondent is not acceptable because Annexure R-5 defines only duties of Head Cashier, but it does not say that in the event of paucity of staff, additional duty cannot be assigned to the Head Cashier. In this regard, reference was made to duties of Head Cashier as mentioned in Annexure R-5. However, this stand of the respondent is not acceptable because Annexure R-5 defines only duties of Head Cashier, but it does not say that in the event of paucity of staff, additional duty cannot be assigned to the Head Cashier. On the contrary, the petitioner assigned the additional duty to the respondent by way of written order Annexure P-3. Some additional duty was also assigned to another employee Pawan Kumar by the same order. If the respondent thought that additional duty could not be assigned to him, he should have written to the petitioner or higher authorities against order Annexure P-3, but the respondent never did so. Consequently, now he cannot be heard to say that no such additional duty could be assigned to him. However, aforesaid stand of the respondent reflects clearly that respondent was nursing a grudge against the petitioner for assigning additional duty to the respondent vide order Annexure P-3. Besides, it letters Annexures P-4, P-5, P-7 and P-8 were also written by the petitioner regarding non-performance of the additional duty by the respondent, who was therefore further annoyed with the petitioner. At no stage, the respondent furnished any explanation for not performing the additional duty assigned to him vide order Annexure P-3. On the other hand, the respondent, by way of his reply Annexure P-6, made an attempt to pressurize the petitioner by intimating that the respondent had taken up the matter with Central Office of his union. If the respondent was aggrieved by the actions of the petitioner relating to order Annexure P-3 and letters Annexure P-4 and P-5, the respondent should have expressed the same when he was being asked to submit his reply. However, the respondent did not think it proper to do so. 5. Learned counsel for the petitioner next contended that the respondent has deliberately cited Tilak Raj Khurana, Jag Ram and Wazir Singh as witnesses because they were also unhappy with the petitioner, who had written letters dated 10.4.1997 (Annexure P-9), dated 16.6.1997 (Annexure P-11), dated 17.8.1998 (Annexure P-13) and dated 8.9.1998 (Annexure P-14) to Tilak Raj Khurana for not performing his duties and also letter dated 3.8.1998 (Annexure P-12) to higher authorities against Tilak Raj Khurana. In pursuance of a letter written by the petitioner to the higher authorities, the petitioner was asked vide letter dated 24.5.1997 (Annexure P-10) to seek explanation of Tilak Raj Khurana for not obeying lawful instructions as regards dispatch work. The petitioner had also passed office order No. 13/98 dated 12.6.1998 (Annexure P-16) advising Jag Ram and Wazir Singh to come to the office in proper uniform provided to them by the Bank. The petitioner had also passed office order No. 14/98 dated 26.6.1998 (also Annexure P-16) requesting Tilak Raj Khurana to write Day Book of the Branch. On account of these letters and orders, all these three witnesses were annoyed with the petitioner and have therefore been cited as witnesses by the respondent, who himself was also nursing a hostile attitude towards the petitioner as noticed above. The petitioner did not cite any other witness out of the Bank employees in support of his version. On the contrary, learned counsel for the petitioner also pointed out that Tilak Raj Khurana was not even present in the Branch at 4.45 p.m. on 9.9.1999 at the time of alleged incident because according to the Attendance Register extract (Annexure P-15), on 9.9.1999, Tilak Raj Khurana was present from 9.45 a.m. to 4.45 p.m. at Extension Counter of the Branch at Vidya Devi Jindal School, few kilometers away from the Mayar Branch, where the alleged incident took place. The fact remains that the respondent cited only those employees as witnesses against whom the petitioner had taken some action and Tilak Raj Khurana was not even supposed to be present on the spot being on duty elsewhere. 6. Learned counsel for the petitioner next pointed out that the respondent had sent letter dated 10.9.1999 (Annexure P-17) (also produced as Annexure R-4 by the respondent himself) to General Secretary of Scheduled Castes and Scheduled Tribes Employees Association of the Bank, but in the said letter, sent after alleged incident dated 9.9.1999, no reference to the said incident was made in letter Annexure P-17 or Annexure R-4 and it would show that the alleged incident dated 9.9.1999, as mentioned in the impugned complaint, had never taken place. There is considerable merit in the argument. If any such incident had taken place, the respondent would have mentioned the same in letter dated 10.9.1999 which was sent in detail against the attitude and behaviour of the petitioner. There is considerable merit in the argument. If any such incident had taken place, the respondent would have mentioned the same in letter dated 10.9.1999 which was sent in detail against the attitude and behaviour of the petitioner. Complete omission to mention the alleged incident dated 9.9.1999 in letter dated 10.9.1999 would lead to the obvious inference that no such incident had taken place. Even the respondent in his letter Annexure P-17 mentioned about the grievances of Jag Ram and Wazir Singh witnesses against the petitioner and did not cite Tilak Raj Khurana as witness in the said letter. 7. Learned counsel for the petitioner next submitted that there has been long and unexplained delay in lodging the FIR and filing the impugned complaint. This argument also has substance. First representation stated to have been made by the respondent is dated 29.10.1999, addressed to the Inspector General of Police and the second representation is dated 9.11.1999. These representations were proved as Exhibits CB and CC by examining Complaint Clerk Raj Bala as PW-2 in preliminary evidence. The alleged incidents had taken place on 9/10.9.1999, but the respondent made the first representation on 29.10.1999 i.e. after delay of seven weeks, which stands completely unexplained. Learned counsel for the respondent emphatically contended that under the bi-partite settlement, the respondent was required to report the matter to the higher authorities against misbehaviour and misconduct of the senior officer i.e. petitioner and accordingly, the respondent sent copy of his letter dated 10.9.1999 (Annexure R-4) to higher authorities of the Bank, but when no action was taken by the higher authorities, then the respondent approached the police authorities for taking action. The contention has no force. Matter of misbehaviour or misconduct has to be reported to the higher authorities of the Bank, but if criminal offence had been committed, nothing prevented the respondent from reporting the same immediately to the police authorities. However, the respondent took seven weeks in approaching the police authorities. To be fair to the respondent, he has alleged in paragraph 6 of the impugned complaint that he had filed a complaint in Police Station Sadar Hisar, but neither date of the said complaint has been mentioned nor the same was produced in preliminary evidence as is evident from the summoning order Annexure P-2. To be fair to the respondent, he has alleged in paragraph 6 of the impugned complaint that he had filed a complaint in Police Station Sadar Hisar, but neither date of the said complaint has been mentioned nor the same was produced in preliminary evidence as is evident from the summoning order Annexure P-2. Thus, for the first time, the respondent mentioned the alleged incidents dated 9/10.9.1999 in representation dated 29.10.1999 made to the Inspector General of Police after seven weeks of the alleged incidents. This long and unexplained delay, coupled with omission to mention the alleged incidents in representation dated 10.9.1999 (Annexure R-4), would indicate that the impugned complaint is result of mala fide. Learned counsel for the respondent, relying on judgment in the case of V.K. Malhotra v. G.R. Nagar, reported as 2002(1) RCR(Criminal) 190 (P&H), contended that it is not necessary that the complainant should first approach the police and only thereafter file complaint on refusal of the police to register FIR. This proposition of law does not help the respondent in the instant case. If the respondent, without approaching the police, had immediately filed the complaint, the matter would have been different and the aforesaid proposition of law could come to his rescue. However, in the instant case, the respondent himself approached the police authorities first and even FIR was also registered in the matter. Thus, it is not a case where the respondent, without first approaching the police authorities, straightway filed criminal complaint in the court. Moreover, the impugned complaint is dated 24.4.2000, instituted more than seven months after the alleged incident. The complaint was not instituted immediately after the alleged incidents. There is thus no explanation for the long delay in initiating action relating to the alleged incidents. The respondent, for the first time, came out with the version of the alleged incidents seven weeks after the incidents had allegedly taken place. 8. Learned counsel for the petitioner next contended that the FIR registered at the instance of the respondent, relating to the same matter, was investigated by Deputy Superintendent of Police and was found to be false and cancellation report in the case was accordingly recommended. 8. Learned counsel for the petitioner next contended that the FIR registered at the instance of the respondent, relating to the same matter, was investigated by Deputy Superintendent of Police and was found to be false and cancellation report in the case was accordingly recommended. It was contended that the learned Magistrate, while passing the impugned summoning order, did not take into consideration this aspect of the matter and even the respondent, in his impugned complaint, concealed this material aspect from the court. The respondent, in paragraphs 7 and 8 of his reply, has admitted that the FIR was investigated by Deputy Superintendent of Police and was cancelled. Further in paragraph 9 of the reply, it has been alleged that respondent had to file the impugned complaint after cancellation of the FIR. It would indicate that the respondent, after being aware of the cancellation of the FIR, filed the impugned complaint, but did not disclose in the complaint that FIR lodged by him had been cancelled. On the other hand, it was pleaded in the impugned complaint by the respondent that the police had not taken any action and had not arrested the accused i.e. the petitioner. Thus, the respondent, instead of disclosing that the FIR had been cancelled, alleged that the police had not taken any action. However, the matter had already been investigated by a Gazetted Officer of the rank of Deputy Superintendent of Police and no truth was found in the allegation of the respondent. The matter of concealment by the respondent does not rest here. Learned Magistrate vide order dated 1.9.2000 (Annexure P-18) observed that since investigation by the police was in progress in relation to the subject matter of the impugned complaint, the proceedings of the complaint were ordered to be stayed in accordance with Section 210 of the Code and report from the Investigating Officer was called for. However, even at that stage, the respondent concealed from the court of learned Magistrate that the police had submitted cancellation report in the FIR. 9. In the aforesaid context, learned counsel for the petitioner submitted that inspite of having called report from the Investigating Officer vide order dated 1.9.2000 (Annexure P-18), the learned Magistrate, while passing the impugned summoning order dated 19.9.2002, did not take into consideration the cancellation/investigation report of the police. 9. In the aforesaid context, learned counsel for the petitioner submitted that inspite of having called report from the Investigating Officer vide order dated 1.9.2000 (Annexure P-18), the learned Magistrate, while passing the impugned summoning order dated 19.9.2002, did not take into consideration the cancellation/investigation report of the police. Perusal of impugned summoning order (Annexure P-2) reveals that there is no reference at all to the investigation report/cancellation report of the police in the summoning order. Without considering the investigation report/cancellation report of the police, the impugned summoning order could not have been legally passed by the learned Magistrate. The respondent, despite knowledge, concealed the cancellation report of the police from the learned Magistrate. This is another indicator of mala fide on the part of the respondent. 10. Learned counsel for the petitioner next pointed out that offence under Section 506 of the Indian Penal Code, as well as offence under Section 3 of the Act, is not made out from the allegations in the impugned complaint. It was pointed out that alleged empty threat, to implicate the respondent in false case or to get him removed from service, would not come within the mischief of criminal intimidation punishable under Section 506 of the Indian Penal Code. There is considerable merit in the submission. Alleged threat by the petitioner could not have caused any alarm to the respondent nor he was being compelled to do an act which he was not legally bound to do or to omit to do an act which he was entitled to do. The allegations in the complaint do not make out a case of criminal intimidation punishable under Section 506 IPC. 11. As regards offence under Section 3 of the Act, it was contended that alleged incident on 9.9.1999 took place at 4.45 p.m., when bank customers were not there. It has not been even alleged in the impugned complaint that any public person, except the three bank employees cited as witnesses, was present at the time of alleged occurrence. It was accordingly contended that the alleged occurrence had not happened in any place within public view which is mandatory requirement of offence under Section 3(1)(x) of the Act. It has not been even alleged in the impugned complaint that any public person, except the three bank employees cited as witnesses, was present at the time of alleged occurrence. It was accordingly contended that the alleged occurrence had not happened in any place within public view which is mandatory requirement of offence under Section 3(1)(x) of the Act. Reliance in support of this contention has been placed on judgment in the case of J. Sumana v. Endluri Aseerwadamma and another, reported as 2003(2) RCR(Criminal) 503 (A.P.), wherein it was held that no offence under Section 3(1)(x) of the Act was made out when the accused abused a member of Scheduled Caste in his office, as the offence was not committed at public place. There is considerable force in the argument. In the instant case, the occurrence took place inside the bank office when public persons were not present. Consequently, the incident cannot be said to have occurred at a place within public view. Accordingly, offence under Section 3(1)(x) of the Act is not made out. 12. Learned counsel for the respondent emphasized that disputed questions of fact cannot be adjudicated upon in the instant petition under Section 482 of the Code. Reliance in support of this contention has been placed on judgment in the case of T. Banamber Patra and others v. Vinod Kumar Sethi and another, reported as 2007(1) Law Herald (P&H) 54 and also on an unreported order dated 12.1.2006 of this Court in Crl. Misc. No. 2052-M of 2006 titled as Ranjit Singh and others v. Sharda Devi. There cannot be any quarrel with this legal proposition. Disputed questions of fact cannot be gone into in a petition under Section 482 of the Code. However, this Court cannot be a helpless spectator when it is made out that the criminal prosecution is mala fide and an abuse of the process of the court. In fact, this Court has inherent power and corresponding duty to prevent abuse of the process of any court or otherwise to secure the ends of justice. In the instant case, the impugned complaint is result of mala fide as the respondent was nursing grudge against the petitioner as discussed herein above. The witnesses cited by the respondent were also aggrieved against the petitioner. The alleged incidents dated 9/10.9.1999 were not mentioned in letter dated 10.9.1999 (Annexure R-4) sent by the respondent. In the instant case, the impugned complaint is result of mala fide as the respondent was nursing grudge against the petitioner as discussed herein above. The witnesses cited by the respondent were also aggrieved against the petitioner. The alleged incidents dated 9/10.9.1999 were not mentioned in letter dated 10.9.1999 (Annexure R-4) sent by the respondent. There was long and unexplained delay in reporting the matter to the police. After investigation by Gazetted Officer, the FIR lodged in the same matter was found to be false and cancellation report was submitted by the police. The respondent, despite being aware of the cancellation report, concealed the same from the learned Magistrate. The impugned summoning order has also been passed without considering or even referring to the cancellation report. Keeping in view all these circumstances, it is a fit case in which this Court has to exercise its inherent powers under Section 482 of the Code by quashing the impugned complaint and summoning order so as to prevent the abuse of process of court and to secure the ends of justice. In addition to it, the alleged offences are also not made out from the allegations in the impugned complaint. For the detailed reasons stated herein above, the instant petition is allowed and the impugned criminal complaint Annexure P-1 and impugned summoning order Annexure P-2 are quashed.