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2010 DIGILAW 448 (JHR)

Jugal Dangi v. State of Jharkhand

2010-04-12

R.R.PRASAD

body2010
Order Initially this writ application was filed for quashing the entire criminal proceeding of Case No. 125 of 2008 and also Case No. 548 of 2008 initiated under Sections 144 and 107 of the Code of Criminal Procedure respectively by the Sub-Divisional Magistrate, Chatra against the petitioner and his family members and also for quashing of the entire proceeding of ltkhori Police Station Case No. 195 of 2008 instituted under Sections 147, 353 and 504 of the Indian Penal Code against the petitioner and his family members. 2. Subsequently prayer was made by way of interlocutory application for quashing the order dated 14.2.2009 under which the said proceeding initiated under Section 144 of the Code of Criminal Procedure was converted into a proceeding under Section 145 of the Code of Criminal Procedure. 3. It is the case of the petitioner that the petitioner was settled with a land measuring 2 acres appertaining to khata no. 227, plot no. 828 at Village-Gidhore, Police Station-Itkhori, District-Chatra by the Circle Officer, Itkhori in the year 1991. On settlement, the rents were being' paid for which rent receipts were granted and the petitioner came in peaceful possession of the land but in course of time, respondent no. 7, Diliya Devi started attempting to disturb the possession of the petitioner from some portion of the aforesaid land measuring 1.20 acres. Thereupon, the petitioner filed a Title Suit No. 7 of 1999 in the Court of Munsif, Chatra against the respondent nos. 7 to 11 for declaring his right, title and interest and also for confirmation of the possession with respect to the aforesaid land including 1.20 acres of the land. The respondents 7 to 11 contested the suit. However, the suit was decreed on 20.8.2001 in favour of the petitioner by declaring his right, title, interest and also confirming the possession over the said lands. Appeal being preferred by the respondents 7 to 11, vide Title Appeal No. 38 of 2001 got dismissed on 3.2.2003. Against the judgment dismissing the appeal, second appeal was preferred before this Court, vide S.A. No. 200 of 2003 which also got dismissed on 14.7.2004 wherein right, title, interest and possession of the petitioner was affirmed by this Court. 4. Appeal being preferred by the respondents 7 to 11, vide Title Appeal No. 38 of 2001 got dismissed on 3.2.2003. Against the judgment dismissing the appeal, second appeal was preferred before this Court, vide S.A. No. 200 of 2003 which also got dismissed on 14.7.2004 wherein right, title, interest and possession of the petitioner was affirmed by this Court. 4. In spite of that, when the petitioner started constructing the building over the said land, respondents 7 to 11 again started disturbing peaceful possession of the petitioner and, therefore, the petitioner rushed to the police station for protection of his right, but instead of giving any protection, Itkhori Police started helping respondent no.7 as she had married A.S.l, Laxman Prasad Singh, who at that time was posted in the same (Itkhori) Police Station. Being emboldened with the attitude of the police respondent nos. 7 to 12, put all kinds of disturbance in peaceful possession over the land, though right, title, interest and possession of the petitioner had been confirmed by the civil court and even by the High Court and not only that respondents, particularly respondent no.7 Diliya Devi in order to put pressure to succumb to her desire got the petitioner and his entire family implicated in Itkhori P.S. Case No. 195 of 2008 registered under Sections 147, 149, 353 and 504 of the Indian Penal Code. The respondents being not satisfied with the judgment of a false case even got a proceeding initiated under Section 107 of the Code of Criminal Procedure, vide Misc. Case No. 548 of 2008 and also under Section 144 of the Code of Criminal Procedure on 19.12.2008 in which notices to show cause were served upon the petitioner, though right, title and interest over the said land which was subject matter of the dispute has been confirmed upto the High Court and, therefore, there was no option left with the petitioner but to file this writ application. 5. 5. Learned counsel appearing for the petitioner submits that the proceeding initiated under Section 144 of the Code of Criminal Procedure' was converted into a proceeding under Section 145 and hence, the order dated 14.2.2009 under which proceeding was converted has been challenged to be bad for the reason that once right, title and interest and even possession of the petitioner over the disputed land have been declared by the competent civil court which order got confirmed upto the High Court, the authority had no jurisdiction to initiate a proceeding under Section 145 of the Code of Criminal Procedure nor the proceeding can be initiated under Section 107 of the Code of Criminal Procedure if the petitioner does exercise his right over the land and thereby he cannot be said to have disturbed the public tranquility and as such, all the orders are fit to be quashed. 6. Leaned counsel further submits that at the same time criminal prosecution lodged against the petitioner as Itkhori P.S. Case No.195 of 2008 under Sections 147, 353 and 504 of the Indian Penal Code is also fit to be quashed as the same can easily be said to be an outcome of the malicious prosecution. 7. A counter affidavit has been filed on behalf of the respondents which appears to be too cryptic as the statement made in the writ application about the declaration of the right, title and possession over the land in dispute has not been disputed. Moreover not a single word in this respect has been uttered. Simply it has been stated that the petitioner cannot be allowed to take law in his own hand and to commit offence and as such, when the petitioner committed offence, first information report has rightly been lodged against him. 8. Moreover not a single word in this respect has been uttered. Simply it has been stated that the petitioner cannot be allowed to take law in his own hand and to commit offence and as such, when the petitioner committed offence, first information report has rightly been lodged against him. 8. Having heard learned counsel for the parties and on perusal of the record, it appears to be admitted position that right, title, interest and possession of the petitioner had been declared by the competent civil court which got confirmed up to the High Court, still the proceeding was initiated between the parties under Section 144 of the Code of Criminal Procedure which subsequently was converted into a proceeding under Section 145 of the Code of Criminal Procedure, vide order dated 14.2.2009, though such application was not fit to be entertained still it has been entertained and, therefore, it can easily be said that entertaining such frivolous application would amount to harassment and disturbance of the peaceful enjoyment of the right, title, interest and possession of the petitioner declared by the civil court at the instance of the unsuccessful party in the civil court and, therefore, any initiation of a proceeding under Section 144 of the Code of Criminal Procedure converted into a proceeding under Section 145 of• the Code of Criminal Procedure, vide its order dated 14.2.2009 amounts to gross abuse of the process of the court and hence, the order dated 14.2.2009 under which 144 proceeding was converted into 145 proceeding in Case No.125 of 2008 can easily be said to be bad. 9. So far initiation of the proceeding under Section 107 of the Code of Criminal Procedure is concerned, that proceeding also seems to be bad on account of notice being vague. In the notice, it has only been stated that there appears to be apprehension in between the parties on account of the land dispute. That has been recorded on the basis of the police report but the .substance of the report of the police and manner in which breach of peace is likely to take place has not been recorded in accordance with the provision as contained in Section 111 of the Code of Criminal Procedure and, hence notice being vague, entire criminal proceeding under Section 107 of the Code of Criminal Procedure gets vitiated. 10. 10. So far third prayer for quashing of the entire criminal. proceeding is concerned, it be stated that initially at the first instance, I "did not consider it fit to go into this matter as it was altogether different cause of action, than the cause of action for which the petitioner moved for quashing of the proceeding under Sections 107 and 144/145 of the Code of Criminal Procedure but keeping in view the manner in which the petitioner is put to harassment, even after decree of the competent court being confirmed upto the High Court, by a person having influence upon the public administration it persuaded myself to associate with the issue instead of referring the petitioner to file another appropriate application. From perusal of the first information report which has been annexed with this writ application as Annexure-2, it does appear that• it has been lodged by one ASI of Itkhori Police Station against the petitioner and his' family members on the allegations that when the informant alongwith other Police Officer came to the disputed land, they found the petitioner and other persons putting some construction by virtue of the order passed by the Circle Officer, Gidhore, were asked to stop but they did not stop putting construction, rather started hurling abuses and pelting stones, as a result of which, some police personnel sustained injuries and thereby accused persons made obstruction in discharge of their public duty. From the fact as recorded earlier, it does appear that respondent no. From the fact as recorded earlier, it does appear that respondent no. 7, according to the petitioner, had married to one A.S.I., who at the relevant point of time was posted as A.S.I. at Itkhori Police Station and that the petitioner's right, title and interest over the land has been declared by the civil court, still respondents in order to put obstruction over' the rightful enjoyment of their right over the disputed land got the proceeding initiated under Sections 107 and 144 of the Code of Criminal Procedure which got converted into a proceeding under Section 145 of the C9de of Criminal Procedure and under this background, if the petitioner was exercising his right over the disputed land, the Anchal Adhikari had absolutely no authority to interfere with his right and as such, even if such order was there by the Circle Officer for stopping construction, it can be said to be wholly illegal order as that order was under the teeth of the order passed by the civil court declaring right title, interest and possession over the land in dispute. That being so, the police party cannot be said to have been discharging their lawful duties. The offence under Section 353 of the Indian Penal Code gets attracted only when public servant in lawful discharge of the duty is prevented or deterred from discharging his duty which is evident from Section 353 of the Indian Penal Code which reads as under:- “353. Assault or criminal force to deter public servant from discharge of his duty.-Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of any thing done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 11. Thus, one of the ingredients is that the public officer in lawful discharge of his duty is prevented or deterred from discharging the duty. Thus, one of the ingredients is that the public officer in lawful discharge of his duty is prevented or deterred from discharging the duty. But, in the instant case, as I have indicated above that when• the right, title, interest and possession of the petitioner was declared by the competent civil court over the suit land, the Anchal Adhikari, Gidhore does not have any authority to put any restriction over any construction to be made on the disputed land. That order being illegal, the police authority cannot be said to have been assaulted or abused while they were lawfully discharging the duty rather the police officer seems to have acted under an illegal order passed by the Circle Officer, Gidhore and, therefore, the allegation made in the first information report even if are taken to be true, no offence is made out under which the case has been registered and therefore, the first information report of Itkhori P.S. Case No. 195 of 2008 is also fit to be quashed. 12. Accordingly, the order dated 14.2.2009 under which 144 proceeding was converted under Section 145 of the Code of Criminal Procedure and also the proceeding initiated under Section 107 vide Case No. 548 of 2008 are hereby quashed and at the same time the first information report of Itkhori P .S. Case No. 195 of 2008 instituted under Sections 147, 353, 504 of the Indian Penal Code including the entire criminal proceeding arising out of the same first information report is also quashed. 13. In the result, this application is allowed.