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2012 DIGILAW 1258 (JHR)

Shiva Shekhar Dwary v. State of Jharkhand

2012-08-28

R.R.PRASAD

body2012
Order Heard learned counsel appearing for the petitioners and learned counsel appearing for the State and also learned counsel appearing for the opposite party no. 2. 2. Learned counsel appearing for the petitioners submitted that late Ashutosh Dwary was the Mul Raiyat of Mouza-Narayanpur, P.S.-Jasidih, District-Deoghar. After his death, petitioner no.1 being eldest son of late Ashutosh Dwary filed an application before the S.D.O., Deoghar for his appointment as Mul Raiyat /Pradhan. That prayer was objected by some of the persons including the complainant, in spite of the fact that a report had been submitted before the Court of Circle Officer hat the petitioner no.1 happens to be the heir and legal representative of late Ashutosh Dwary. However, accused persons including the complainant got a report placed before the S.D.O. said to have been is sued by the Circle Officer wherein it was reported that petitioner no.1 is not competent to be appointed as Mul Raiyat/Pradhan but that report was manufactured one as it had never been issued by the Circle Officer. The S.D.O. though accepted the report of the Circle Officer filed in favour of the petitioner no.1 but passed an order that the petitioner no.1 is not competent to be appointed as Mul Raiyat/Pradhan. Against that order, this petitioner preferred appeal before the D.C., Deoghar. The D.C., Deoghar having taken into account all the facts and circumstances including the report submitted by the Circle Officer in favour of the petitioner no. 1 did declare that the petitioner no. 1 is competent to be appointed as Mul Raiyat/Pradhan. That order was challenged before the Divisional Commissioner by the complainant but that application got dismissed. 3. It was further submitted that while the aforesaid matter was pending adjudication, an application was filed under Section 340 of the Code of Criminal Procedure for holding enquiry. After holding enquiry, S.D.O. did find that the complainant and others had submitted forged report of Circle Officer. In spite of that, S.D.O. did not file any complain. Therefore, the petitioner did file complaint bearing P.C.R. Case No. 53 of 2007 on 17.1.2007 alleging therein about the commission of offence of forgery by the complainant and other four persons. Initially over that complaint, cognizance of the offence was taken on 3.1.2009 for an offence under Section 323 of the Indian -Penal Code, though no such offence had been alleged. Initially over that complaint, cognizance of the offence was taken on 3.1.2009 for an offence under Section 323 of the Indian -Penal Code, though no such offence had been alleged. Therefore, the petitioner had to move before the revisional court who passed an order directing the court to go for further enquiry. Thereupon cognizance of the offences punishable under Sections 109, 196, 93, 166, 465, 466, 471 and 120B of the Indian Penal Code was taken on 21.4.2009 4. It was further submitted that on coming to know about filing of P.C.R. Case No. 53 of 2007, the complainant did file complaint bearing Complaint Case No. 981 of 2007 on 12.12.2007 alleging therein that when the petitioner made his intention clear that the complainant would be dispossessed from the land, it was objected by the complainant, upon which petitioner no.1 who happens to be quite old and even petitioner no. 2, a handicapped person were alleged to have assaulted the complainant. Upon which cognizance of the offence was taken under Sections 323, 341 and 504 of the Indian Penal Code and also under Section 3(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which is under challenge. 5. Mr. Rupesh Singh, learned counsel appearing for the petitioners submitted that from the fact stated above, it would clear that the complaint was lodged by the complainant to wreak vengeance against the petitioner as the petitioner had lodged a complaint case for commission of offence of forgery and therefore, it can easily be said that the complainant has filed the complaint case for ulterior purpose and thereby the order taking cognizance is fit to be quashed. 6. It was further submitted that even if the allegation levelled in the, complaint is taken to be true, no offence is made out under Section 3(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as the petitioners have never been alleged to have dispossessed the complainant from the land, rather the allegation is that the petitioners were contemplating to dispossess the complainant from the land which will never make out a case under Section 3(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 7. It was further submitted that keeping in view the physical condition of both the petitioners, it is not expected that the petitioners would commit offence as alleged. 8. 7. It was further submitted that keeping in view the physical condition of both the petitioners, it is not expected that the petitioners would commit offence as alleged. 8. Thus, it was submitted that the order taking cognizance is fit to be quashed. 9. As against this, learned counsel appearing for the opposite party no. 2 submitted that since the allegations made in the complaint does constitute offence under which cognizance has been taken, the order taking cognizance never warrants to be quashed and this application is fit to be dismissed. 10. Having heard learned counsel appearing for the parties, it does appear that on the one hand, the petitioners are seeking quashing of the order taking cognizance on the ground that the complaint has been lodged for wreaking vengeance. If it is so it happens to be one of the ground where this Court in exercise of its inherent power to prevent abuse of the process of the Court in view of the decision rendered in a case of State of Haryana and Others vs. Bhajan Lal and Others [1992 Supp (1) SCC 335] wherein their Lordships had laid down the categories of the cases by way of illustrations wherein extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 of the Code at Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure ends of justice. One of such categories is as follows:- "where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreak vengeance on the accused and with a view to spite him due to private and personal grudge." 11. As I have noticed above, when the petitioners did find that a document said to have been issued by the Circle Officer was forged one, an application was filed under Section 340 of the Code of Criminal Procedure before the Court of S.D.O. for holding enquiry. In that proceeding, the report which had been filed at the instance of the complainant was found to be forged. However, the court did not file any complaint on the basis of enquiry made but the petitioners did file complaint case bearing P.C.R. Case No.53 of 2007. Thereupon the instant complaint was filed. In that proceeding, the report which had been filed at the instance of the complainant was found to be forged. However, the court did not file any complaint on the basis of enquiry made but the petitioners did file complaint case bearing P.C.R. Case No.53 of 2007. Thereupon the instant complaint was filed. On going through the allegation made in the complaint, one can easily come to the conclusion that the complaint case has been filed by the complainant maliciously with an ulterior motive for wreak vengeance. In this situation, if the complaint case is allowed to be proceeded with, it would amount to abuse of the process of the court. 12. Accordingly, the entire criminal proceeding of complaint bearing P.C.R. Case No. 981 of 2007 including the order taking cognizance is hereby quashed. 13. In the result, this application is allowed.