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2012 DIGILAW 275 (PAT)

Snailendra Nath Gupta v. State of Bihar

2012-02-15

ADITYA KUMAR TRIVEDI

body2012
JUDGMENT Aditya Kumar Trivedi, J.-Earlier Cr.W.J.C. No. 8 of 2002. Cr.W.J.C. No. 9 of 2002. Cr.W.J.C. No. 112 of 2002. Cri. Misc. No. 35338 of 2000 were directed to be heard analogously. However, Cri. Misc. No. 35338 of 2000 was dismissed for want of prosecution while Cr.W.J.C. No. 9 of 2002. Cr.W.J.C. No. 112 of 2002 were dismissed as withdrawn. As such now the only one Cr.W.J.C. survives which happens to be the present one. 2. Petitioners. Shailendra Nath Gupta. Chhotelal, Kamleshwar Pathak have filed instant criminal writ with a prayer for quashing the entire proceeding If Complaint Case No. 333(c) of 2001 as well as order dated 06-08-2001 passed by Sri KK Singh, Judicial Magistrate, 1st Class Danapur whereby and where under petitioners including others have been summoned to face trial for an offence punishable under Sections 147, 428, 427, 380, 323 of the IPC. 3. Respondent No.2. Surajdeo Rai filed complaint petition on 25.6.2001 before A.C.J.M., Danapur against petitioners and others disclosing therein that on 23.06.2001 at about 01:00 p.m. while he came to place of occurrence which happens to be his hotel standing over the land which had already been settled by the Danapur Cantonment in his favour, seen that the accused persons are illegally dismantling his hotel. On protest made by the complainant and his son accused persons abused. On their order, the labourers ransacked his hotel and took away the articles enlisted therein to cantonment office. 4. It has further been averred that the complainant had filed title suit No. 37 of 2001 before Munsif Danapur against Cantonment as well as its Executive Officer wherein a petition for injunction has been filed. The opposite parties appeared, filed show cause and the Court passed an order taking into account an undertaking given by the opposite parties to maintain status quo which the complainant had already communicated to the concerned office. 5. On the basis of aforesaid complaint petition. an enquiry under Section 202 of the Cr PC was entrusted by A.C.J.M. getting the complaint petition transferred to the Court concerned under Section 192 of the Cr PC during course of which witnesses were examined and then by the order impugned, petitioners along with others have been summoned to face trial. 6. On the basis of aforesaid complaint petition. an enquiry under Section 202 of the Cr PC was entrusted by A.C.J.M. getting the complaint petition transferred to the Court concerned under Section 192 of the Cr PC during course of which witnesses were examined and then by the order impugned, petitioners along with others have been summoned to face trial. 6. Contention on behalf of petitioners is that true it is that settlement of the land at an earlier occasion was made in favour of petitioner but was subsequently resend. Thereafter he took illegal possession over cantonment land on account of which he was removed by the administration even then complainant indulged in criminal action for which on the written report of petitioner No. 1. Danapur P.S. Case No. 251 of 2001 was registered. Then submitted that the respondent No.2 could not be able to get any order in his favour from the Court of Munsif in T.S. No. 37/2001. Not only this in due course of time, Title Suit No. 37 of 2001 got dismissed. Also submitted that the petitioners have been implicated in this false concocted case in the aforesaid background. It has further been submitted that petitioners are an employee under Government of India to the extent of relating to defence and were exercising their power vested under the Cantonment Act to safeguard the property of the cantonment and as such are immune from prosecution unless and until sanction is accorded by the competent authority. So submitted that from own narration of the complaint petition. it is evident that the petitioners are being taken to task by way of revengeful act leading to malicious prosecution. 7. Learned G.A. fairly submitted that from the complaint petition itself it is evident that some sort of litigation was going on whereupon the respondent No. 2 had filed-civil suit which ultimately resulted in its dismissal and present litigation appears to be its admitted sequence. 8. In spite of granting so many adjournments, none represented respondent No. 2 nor any counter-affidavit has been filed on his behalf. 9. Quashing of criminal prosecution by exercising extra-ordinary jurisdiction so vested by way of inherent power under Section 482 of the Cr PC as well as under writ jurisdiction should not be exercised frequently rather it should be sparinging with self contained restrain and constrain. The aforesaid limitations have already been identified since R.D. Kapoor's Case. 9. Quashing of criminal prosecution by exercising extra-ordinary jurisdiction so vested by way of inherent power under Section 482 of the Cr PC as well as under writ jurisdiction should not be exercised frequently rather it should be sparinging with self contained restrain and constrain. The aforesaid limitations have already been identified since R.D. Kapoor's Case. However, simultaneously it has also been observed that the High Court should not be a silent spectator and allow a criminal prosecution in getting an innocent harassed out of malice prosecution and so there has been extension of its ambits scope at different opportunity State of Hariyana and others v. Bhajan Lal and others. AIR 1912 SC 604 is still commanding the issue. Moreover for better appreciation the relevant guidelines are quoted below : "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials. if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in, any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act. (6) Where there is an express legal bar engrafted in, any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act. providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 10. To arrive at a conclusion whether documents filed on behalf of accused should be taken into consideration or not for that a reference may have as reported in 2011(3) SCC 351 at para-25 wherein it has been observed : "25. In our judgment, the above observations' cannot be read to mean that in a criminal case where mal is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed. it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case. if on the fact of the documents-which are beyond suspicion or doubt-placed by the accused, the accusations against him cannot stand. it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the mal Court. In such a matter, for promotion of justice or to prevent in ustice or abuse of process the High court may look into the materials which have a significant bearing on the matter at prima facie stage." 11. In another decision reported in 2012(1) SCC 520 at para-20 it has been held: "20. In such a matter, for promotion of justice or to prevent in ustice or abuse of process the High court may look into the materials which have a significant bearing on the matter at prima facie stage." 11. In another decision reported in 2012(1) SCC 520 at para-20 it has been held: "20. As lightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation. But, if on the face of the documents which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand. in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code." 12. Thus, from the aforesaid observations it has been settled at rest that unimpeachable documents filed on behalf of accused may be taken into account at the stage of exercising power under Section 482 of the Cr PC as well as during exercising writ jurisdiction. 13. From the complaint petition itself it is evident that presence of complainant at the place of occurrence happens to be on the basis of settlement. That means to say the land belonging to Cantonment Board is an admitted one. No civilian is permitted to enter and remain unless and until there happens to be settlement of land in his favour. The litigation amongst the parties is itself admitted in the complaint petition extending up to pendency of Title Suit No. 37 of 2001. Annexure-5 happens to be one of the orders passed by the learned Munsif, Danapur on the point of ad interim injunction where under all the ingredients has been negatively answered, so far interest of respondent No. 2 is concerned. Vide Annexure-12, it is evident that Misc. Appeal was preferred before the learned District Judge which was also dismissed. Annexure15 happens to be the final order by which above referred Title Suit was dismissed. Thus, possession in whatever manner may be as claimed by the respondent No.2, was not all accepted by the Court as sacrament. 14. Vide Annexure-12, it is evident that Misc. Appeal was preferred before the learned District Judge which was also dismissed. Annexure15 happens to be the final order by which above referred Title Suit was dismissed. Thus, possession in whatever manner may be as claimed by the respondent No.2, was not all accepted by the Court as sacrament. 14. Now coming to merit of the case, it is evident that no specific allegation has been alleged against the petitioner save and except had abused and threatened that all the articles would be taken to the Cantonment Board and that, the same was removed. This clearly suggest that the petitioners were actively involved in due discharge of their duty. 15. For want of appearance of respondent No.2 and further as the State had itself endorsed the submission raised on behalf of petitioners, hence taut, text. texture of petitioner remained unchallenged to the extent that petitioners happens to be a member of armed force and were entrusted to look after affair of cantonment and even during relevant time, were discharging their official duty. 16. The prosecution in its present form appears to be non-maintainable as is evident from Section 338 of the Cantonment Act which reads as follows : "338. Protection of action of the Board etc.-No suit or prosecution shall be entertained in any Court against a Board or against the Chief Executive Officer, the Officer Commanding a station, Defence Estates Officer, Principal Director, General Officer Commanding-in-Chief, the Command, Director General Defence Estates, or against any member of a Board, or against any officer or employee of a Board for anything which is in good faith done or intended to be done, under this Act or any rule or bye-law made thereunder." 17. The application of Section 338 is itself supported with the narration of the complaint petition. Not only this. the steps taken by respondent No.2 more particularly by filing title suit for permanent injunction since before the date of alleged occurrence and having been flung by his own conduct resulting dismissed of suit appears to be an additional ground. 18. As such, the filing of complaint clearly inspires having colour with arbitrariness, malicious one full of grudge s well as personal vendetta. 18. As such, the filing of complaint clearly inspires having colour with arbitrariness, malicious one full of grudge s well as personal vendetta. Therefore, is continuance will be nothing but an abuse of the process of the Court which could not be allowed at any cost as the Court cannot be permitted to be used as a tool to satisfy the personal grudge. As such, the order impugned is set aside. Consequent thereupon, petition is allowed. Petition allowed.