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2014 DIGILAW 314 (JHR)

Chandra Shekhar Dubey v. State of Jharkhand

2014-02-28

D.N.UPADHYAY

body2014
ORDER 1. This writ petition (Cr.) has been filed with a prayer to quash entire criminal proceeding arising out of C.P. Case No. 747 of 2009 and also the order dated 28.1.2010 by which the learned Judicial Magistrate, Dhanbad has directed to issue summons against the petitioners to face trial under Section 341/34 of the Indian Penal Code and Section 3 (i)(vii) and (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. The facts in brief is that the complainant Siyaram Paswan was engaged in issuing slips to the voters on the eve of parliamentary election on 22.4.2009. In the meantime, at about 1.00 p.m. the petitioners armed with stick, rifles etc. reached to the place and enquired about the names of the persons, who were issuing slips to the voters. After knowing the name of complainant, he was abused by petitioner Nos. 1 & 2 in the name of his caste and accused No. 3 caught hold of his colar and gave two slaps on his face. The 4th petitioner-Mahabir Kharwar spited on the face of the complainant. It is contended that the matter was informed to the police but no action was taken as a result, complaint being Complaint Case No. 747 of 2009 was lodged and after holding enquiry an order under Section 204 of the Cr PC by the learned Magistrate was passed and the petitioners were directed to face trial for the offence indicated above. 3. It is submitted by the learned Counsel for the petitioners that the occurrence did not take place within the public view. The complainant has not disclosed names of the persons who had seen the incident there is difference between public view and public place. The complainant does not belong to the caste in whose name abuses were hurled which is apparent from the surname which he disclosed. So far as petitioner No. 4 is concerned he is member of Scheduled Tribes and therefore, no offence under Section 3 (i)(x) or 3(i)(vii) of the S.C. and S.T. (Prevention of Atrocities) Act is attracted against him. As a matter of fact, petitioner No. 2 as well as petitioner No.4 have lodged first information report against the complainant and his companion prior to institution of this complaint. In the case lodged by petitioner No. 2 charge-sheet has been submitted against the complainant. As a matter of fact, petitioner No. 2 as well as petitioner No.4 have lodged first information report against the complainant and his companion prior to institution of this complaint. In the case lodged by petitioner No. 2 charge-sheet has been submitted against the complainant. The prosecution launched by the complainant is nothing but a malicious prosecution for wrecking vengeance because he has been made accused in earlier case lodged by petitioner Nos. 2 & 4. It is held in the case of State of Haryana vs. Bhajan Lal that malicious prosecution if launched with a purpose of wrecking vengeance that should not be permitted to continue and such prosecution can well be quashed by exercising power conferred under Article 226 of the Constitution of India. It is further pointed out that petitioner No. 1 is a political leader having good reputation for extending social service to the people. Petitioner No. 1 to 3 have been honoured by Dalit Samaj in a public meeting and therefore, it is not expected the persons of such repute shall pass derogatory remarks against the complainant and that too in the name of his caste. 4. Counsel for the informant as well as the State have vehemently opposed the argument. 5. It is submitted by the Counsel for the complainant that the allegations leveled, in the complaint clearly constitute offences punishable under Indian Penal Code as well as offences attracting ingredients of S.C. and S.T. (Prevention of Atrocities) Act. It is contended that in course of election while the complainant was busy in issuing slips to the voters, the incident took place. The statement of witnesses examined on behalf of prosecution is sufficient to bring on record that the incident took place within the public view and that too at a public place. He has further submitted that it is not necessary for each and every witness to repeat each and every sentence of the complaint rather in course of enquiry the gist of the occurrence is to be given. There is no merit in this writ petition and the same is liable to be dismissed. 6. I have gone through the complaint petition; statement of complainant recorded on S.A. and the statement of witnesses recorded during enquiry and other documents annexed with this writ petition. There is no merit in this writ petition and the same is liable to be dismissed. 6. I have gone through the complaint petition; statement of complainant recorded on S.A. and the statement of witnesses recorded during enquiry and other documents annexed with this writ petition. Prima facie it is apparent that the averments made in the complaint find support from the statement of complainant recorded on S.A. and also by two of the enquiry witnesses. It is settled principle of law that the Court, while passing order under Section 204 of the Cr PC shall consider the averments made in the complaint, statement of complainant recorded on S.A. and the statement of witnesses recorded during enquiry. If the material so brought on record prima facie suggest to proceed further, order to issue summons against the accused directing him to face trial can be passed. It is not expected that the Court will discuss the statement in detail as to the ingredients of the offences attracted or the role of each and every accused indicating what offence each particular accused has committed. 7. Learned Counsel has argued that Section 3 (i) (vii) of the S.C. and S.T. (Prevention of Atrocities) Act is not attracted on the basis of statement given by the complainant and the witnesses during enquiry and the ingredients are not attracted. It is needless to mention that such points can well be raised at the time of framing of the charge. 8. It is also argued that the criminal prosecution launched by the complainant against the petitioners is malicious one and it was initiated for wrecking vendee because petitioner No.2 and 4 had already lodged F.I.R. against the complainant. Again I would like to make it clear if there is case and counter-case between the parties concerned, it will never come under the purview of wrecking vengeance. Every aggrieved has right to raise his grievance before competent authority for its redressal. It is contended in the complaint itself that the matter was reported to the police but the police had not taken action in time. Therefore, this complaint was lodged. No one will be permitted to take the law in his own hand to give lesson to other for the wrong committed by the other. If the role played by both party constitute offence, both of them are liable to be punished in accordance with law. Therefore, this complaint was lodged. No one will be permitted to take the law in his own hand to give lesson to other for the wrong committed by the other. If the role played by both party constitute offence, both of them are liable to be punished in accordance with law. Launching of criminal prosecution against each other in such circumstance shall not be considered malicious prosecution. 9. In view of the discussions made above. I do not feel inclined to allow this writ petition and the same stands dismissed. 10. Interim order, if any, granted shall stand vacated and the Court-below shall be at liberty to proceed further in accordance with law. Petition dismissed.