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2008 DIGILAW 1237 (JHR)

Yudhishthir Roy v. State of Jharkhand

2008-10-25

D.K.SINHA

body2008
JUDGMENT : D.K.Sinha,J.The petitioner herein has invoked the extraordinary writ jurisdiction under Article 226 of the Constitution of India for quashment of the F.I.R. drawn in connection with Deoghar P.S. Case No. 109 of 2005 corresponding to G.R.No.341 of 2005 for the offence alleged against the petitioner under Sections 406/420/452 & 188 I.P.C. pending before the C.J.M., Deoghar and further quashment of the entire criminal proceeding commenced on the basis of such F.I.R. 2. The fact of the case as stands narrated in the written report of the informant S.D.O., Deoghar presented before the Officer-in-Charge of Town Police Station, Deoghar as per information received from one Kishore Singh was that the petitioner Yudhishthir Roy was raising boundary wall over town plot No. 1231A at Mauza Khoradah within Deoghar Circle with the intention to usurp the land. On such information a proceeding under Section 144 Cr.P.C. was initiated giving rise to Criminal Misc. No.572 of 2004 between the parties over 8 kathas of land and both were called upon to show their causes. Nevertheless, in course of the proceeding, it was informed by Kishore Singh on 7.12.2004 that in spite of prohibitory order under Section 144 Cr.P.C. over the land in question, the work of construction of boundary wall was being done by the petitioner Yudhishthir Roy. The Officer-in-Charge of Deoghar Police Station was directed and in compliance to that the construction work, which was being done on the disputed plot was stopped. It was further stated in the written report that Circle Officer, Deoghar, when called upon, reported that town plot No.1231 A was a Gochar land (grazing land) pertaining to survey plot No. 236 having area of 4.92 acre and by concealing the fact that the said land was in the nature of Gochar land, it was settled by Roheni Ghatwal in favour of Tripurari Rout and that the petitioner Yudhishthir Roy claimed that the said land was obtained by him but no document was produced by the petitioner to substantiate his claim over the land. It was reported by the Circle Officer that the petitioner had encroached the said land and he had no valid paper. It was clarified by the Circle Officer that there was no provision for the settlement of Gochar land by authority and if at all any part thereof is settled, would tantamount to illegal settlement which was barred. It was reported by the Circle Officer that the petitioner had encroached the said land and he had no valid paper. It was clarified by the Circle Officer that there was no provision for the settlement of Gochar land by authority and if at all any part thereof is settled, would tantamount to illegal settlement which was barred. The informant Sub-Divisional Officer, Deoghar alleged that in spite of removal of encroachment at earlier occasions by the Officer-in-Charge, Deoghar under the supervision of Circle Officer, Deoghar from the land in question, the petitioner had constructed a pucca boundary as well as a room thereon by again encroaching upon the Gochar land being the disputed plot and the encroachment was finally removed pursuant to the direction of the informant vide memo No. 194/Go, Deoghar dated 27.3.2005. The informant alleged that the petitioner had encroached the Gochar land forcibly against a document alleged to be forged in spite of the proceeding upon the said land under Section 144 Cr.P.C. restraining the parties from going upon the said land and thereby the petitioner usurped the land which was valued at Rs.60-70 lakhs. 3. The petitioner was arrested on the basis of the police case on 14.5.2005 nevertheless, was released on regular bail on 18.05.2005 by the Court of 1st Additional Sessions Judge, Deoghar. 4. The case of the petitioner was that the S.D.M., Sadar Deoghar by the order dated 27.12.1999 directed for demarcation of Plot No. 1232A on the petition of one Tripurari Rout in course of the proceeding under Section 144 Cr.P.C. on his claim that he had obtained the said land on 10.02.1954 from Ghatwal Roheni Estate and since then he was in possession over the land in question and was making up-to date payment of rent. Pursuant to the order of demarcation as passed by the Sub-Divisional Magistrate, Deoghar the Anchal Amin by his report dated 01.12.1999 stated in Revenue Misc. Case No.108/1999-2000 that the Plot No. 1232 A measuring 1 Bigha and 5 Katha was settled in the name of Tripurari Rout by the landlord of Roheni Estate on 10.02.1954 and that he was paying rent to the State Government after his name was mutated. Case No.108/1999-2000 that the Plot No. 1232 A measuring 1 Bigha and 5 Katha was settled in the name of Tripurari Rout by the landlord of Roheni Estate on 10.02.1954 and that he was paying rent to the State Government after his name was mutated. The petitioner entered into an agreement with the said Tripurari Rout and the latter executed a deed of lease dated 26.12.2002 whereby said Tripurari Rout permitted the petitioner to use the plot No. 1232A as play-ground for the children of Red Rose School and that the said lease was granted to the petitioner for a period of 30 years on the monthly rent of Rs. 500/-and therefore, under the circumstances in any event, no offence was made out against the petitioner Yudhishthir Roy much less for the alleged offence under Sections 406/420/452/188 I.P.C. as he was in possession as lessee. 5. On the point of law, learned Counsel for the petitioner submitted that special provision under Santhal Parganas Tenancy Act, 1949 with reference to Section 67 has been laid down which is itself a penal provision for alleged encroachment of Gochar land by any person and therefore, the petitioner cannot be prosecuted for the alleged offence under general law though the allegation of encroachment is denied. The instant case is covered by Bhajan Lal’s case the learned Counsel submitted, reported in A.I.R. 1992 S.C. 604 in which certain ratios were propounded by the apex court governing rule of quashment of F.I.R. and the present case is fully covered by the said authority of law. 6. The Counsel further relied upon an unreported decision of this Court passed in W.P.(Cr.)No.75 of 2006 on 23.03.2007 (Sunil Kumar Singh Vrs. State of Jharkhand) in which it was observed that when there is a specific penal provision in special law, the criminal prosecution under general law could not be attracted. 7. In the counter-affidavit filed on behalf of Respondent Nos. 2 to 4, it was reiterated that Plot No. 236 of Mauza Khoradah measuring 4.92 acres was recorded as Gochar land and according to Section 38(i) of the Santhal Parganas Tenancy Act, 1949, Gochar land ( the land left out for grazing by the cattle) cannot be used for any other purpose. 2 to 4, it was reiterated that Plot No. 236 of Mauza Khoradah measuring 4.92 acres was recorded as Gochar land and according to Section 38(i) of the Santhal Parganas Tenancy Act, 1949, Gochar land ( the land left out for grazing by the cattle) cannot be used for any other purpose. It was reiterated therein that the town plan plot No. 1232A was actually Plot No. 236 consisting of 4.92 acres of land and the petitioner with the intention to grab the Gochar land as recorded being Plot No. 236 had manipulated to be transferred in the name of Tripurari Rout by so-called Amalnama alleged to be granted by Roheni Ghatwal. The petitioner did not produce any chit of paper either before the S.D.O. in a proceeding under Section 144 Cr.P.C. or before the writ Court in support of the contention that he had obtained the lease from Tripurari Rout for the said land. Yet, it was admitted by the respondents in the counter-affidavit that the encroachment allegedly made by the petitioner has been removed by local authority with the help of police and in presence of Circle Officer, Deoghar but even then the fact remained, according to the prosecution that the petitioner tried to encroach Gochar land nevertheless, the respondents were silent in the counter-affidavit on the point of law raised as to whether the criminal prosecution of the petitioner under the penal provisions of Indian Penal Code was maintainable on the face of the penal provision as contained in Section 67 (1)(h)(ii) of the Santhal Parganas Tenancy Act which is special law. 8. 8. Having regard to the facts and circumstances of the case, I find that respondents have very fairly admitted that the land in question said to be the Gochar land which was allegedly earlier encroached by the petitioner by raising brick work and constructing a room therein has been removed by the local authority and even if the petitioner had committed any offence it attracted the penal provision under Section 67 (1) (h) (ii) of the Santhal Parganas Tenancy Act, 1949 which is special law and it speaks:- “ If any person being a raiyat encroaches on any of the recorded village paths, camping or grazing grounds shall be liable to a fine which may extend to two hundred rupees and in the case of a continuing offence to a further fine not exceeding 5 rupees for each day during which the offence continues.” 9. By Section 6 of the Bihar Scheduled Areas Regulation, 1969 (Regulation 1 of 1969) the provision was inserted, “ If any land is transferred in contravention of the provisions of section 20 or any other provision of this Act or by fraudulent method and is held or cultivated by any person with knowledge of such transfer, he shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to one thousand rupees or with both, and in the case of a continuing offence, to a further fine not exceeding fifty rupees for each day during which the offence continues.” The provision was made therein that fine shall be imposed by the Deputy Commissioner on enquiry held by him on his own motion or information received or upon the complaint of the party aggrieved made within three months from the date on which the offence was committed. 10. It is trite law that special law shall prevail over the general law. I find substance in the argument advanced on behalf of the petitioner that even if there was allegation of encroachment of land alleged to be in the nature of Gochar land the provision was there in the special law under Santhal Parganas Tenancy Act for prosecution of the petitioner under the penal provision and that his criminal prosecution under the provisions of Indian Penal Code is uncalled for which cannot sustain. I find no reason for prosecution of the petitioner for the alleged offence under I.P.C. and the same is unsustainable under law. I find merit in this writ petition and thus, it is allowed and the F.I.R. arising out of Deoghar P.S. Case No.109/05 corresponding to G.R.No.341 of 2005 in which the petitioner has been figured as an accused is quashed with the consequential effect. Nevertheless, it is open for the respondents who may take legal recourse under the appropriate provision of law.