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2013 DIGILAW 1109 (JHR)

Bapi Malgope v. State of Jharkhand

2013-09-25

R.R.PRASAD

body2013
ORDER By the Court. - Mr. Choudhary, learned counsel appearing for the petitioners submits that this application was filed for quashing of the order dated 20.9.2011 passed by the Judicial Magistrate, 1st class, Jamshedpur in Complaint Case No. 3401 of 2010 which order was affirmed by the learned Additional Sessions Judge, Jamshedpur in Cr. Rev. No. 193 of 2011 but the same order could not be challenged though the said order passed by the revisional Court had been annexed with the main petition and therefore, by filing interlocutory application the order passed by the revisional Court has been challenged. 2. Heard learned counsel appearing for the petitioners and learned counsel appearing for the State on an interlocutory application bearing No. 7431 of 2012 wherein order dated 18.9.2012 passed by the Additional Sessions Judge, Jamshedpur affirming the order taking cognizance has been challenged and therefore, the said prayer is allowed to be incorporated in the main application. 3. Prayer is allowed. 4. Let the interlocutory application form part of the main application. Cr.M.P. No. 1053 of 2013 5. Heard learned counsel appearing for the petitioners and learned counsel appearing for the State. 6. This application has been filed for quashing of the order dated 18.9.2012 passed by the learned Additional Sessions Judge, Jamshedpur in Cr. Rev. No. 193 of 2011 affirming the order dated 20.9.2011 passed in Complaint Case No. 3401 of 2010 whereunder cognizance of the offences punishable under Sections 323, 341, 342, 427, 506 of the Indian Penal Code and also under Sections 3(V) and 3 (X) of the SC and ST (Prevention of Atrocities) Act has been taken against the petitioners. 7. Mr. Choudhary, learned counsel appearing for the petitioners submits that though the Court has taken cognizance of SC and ST (Prevention of Atrocities) Act but the complainant who is said to have been abused was not present at the spot and thereby the complainant cannot maintain the complaint petition, in view of the decision rendered in a case of Asmathunnisa v. State of Andhra Pradesh and another, (2011) 11 SCC 259 . 8. Further it was submitted that the allegation is there with respect to dispossession from the land in question but the land in question was never owned and possessed by the complainant rather it is the complainant. 8. Further it was submitted that the allegation is there with respect to dispossession from the land in question but the land in question was never owned and possessed by the complainant rather it is the complainant. who was in possession over the land which would be evident from several documents such as, electricity bills, voter identity card as well as from the police report submitted in a proceeding under Section 144 of he Code of Criminal Procedure and thereby the Court did commit illegality in taking cognizance particularly of the offences punishable under the SC and ST (Prevention-of Atrocities) Act. 9. From perusal of the complaint, it does appear that it has been alleged that on the date of occurrence, the accused persons armed with deadly weapons entered into the house of the complainant by breaking the door and surrounded all the male and female members and they started digging the vacant land for constructing wall with intention to forcibly occupy and capture the land. When they were opposed, they hurled abuses to the family members of the complainant. 10. Thus, the allegation which has been made amounts to interference with the enjoyment of the right of the complainant the members of SC/ST community over the land in question punishable under Section 3(i)(v) of the SC and ST (Prevention of Atrocities) Act though the stand which has been taken by the petitioners is that the said land never belongs to the complainant, rather it belongs to the petitioners. In support of his case, certain documents mentioned above were referred to. 11.. This is not the stage to adjudicate upon as to whether the complainant or the petitioners was in possession. This can be decided only during trial. 12. Further so far the offence punishable under Section 3(i)(x) of the SC and ST (Prevention of Atrocities) Act is concerned, the petitioners seem to have abused the family members of the complainant, though the complainant was not present over there. 13. According to learned counsel, since the complainant was not there at the spot when abuses were hurled, he cannot maintain the complaint petition. 14. 13. According to learned counsel, since the complainant was not there at the spot when abuses were hurled, he cannot maintain the complaint petition. 14. The proposition advanced on behalf of the petitioners is not acceptable for the reason that though the complainant was not there but the family members of the complainant who were abused were very much present at the spot and hence, the complainant, in my view, can very well maintain the complaint petition. 15. So far the decision referred to on behalf of the petitioners is concerned, the fact of the case was quite different. There the appellant who had moved before the Supreme Court. had never been alleged to have hurled any abuses so as to any offence under the SC and ST (Prevention of Atrocities) Act be attracted against them and that the persons abused were never there at the spot. In that event the Hon'ble Supreme Court laid down the proposition given hereunder : "9. The aforesaid paragraph clearly mean that the words used are 'in any place but within public view' which means that the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present." 16. But here, the petitioners have been alleged to have abused the family members of the complainant. 17. In that situation, the decision upon which the petitioners have placed reliance is not helpful. 18. Accordingly, I do not find any merit in this application. Hence, it is dismissed. 19. However, any finding given at this stage for the purpose of disposal of this case, may not be prejudicial to the petitioners. Notwithstanding the fact that the application got dismissed, the plea which has been taken by the petitioners shall be available to the petitioners at an appropriate stage. Petition dismissed.