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2015 DIGILAW 881 (JHR)

Subrata Das v. State of Jharkhand

2015-07-28

RAVI NATH VERMA

body2015
ORDER : Challenge in this revision application is to the order dated 05.02.2014 passed by the learned Additional Sessions Judge-I-cum Special Judge, Dhanbad in C.P. Case No. 860 of 2000 whereby and whereunder the petition filed by the petitioner for his discharge under Section 227 of the Code of Criminal Procedure (in short “the Code”), has been rejected. 2. At the instance of respondent no.2 Wakil Paswan, a complaint case was filed before the Chief Judicial Magistrate, Dhanbad against the petitioner and one D.B.Raman, Manager of TISCO, Jamadoba Colliery, District- Dhanbad with the allegation that the accused D.B.Raman all the time had been pressurising him to do menial works at his residence, which was protested by the complainant as a result of which, he was insulted in public by using and naming his caste “ Sala Dusadh why do not you agree to sweep ”and also harassed the complainant in various ways and on 18.04.2000 when the complainant entered into the chamber of accused D.B. Raman, this petitioner, who is also posted as Colliery Manager along with D.B.Raman in the same Jamadoba Colliery, was also sitting there, whereafter he submitted his application for casual leave on account of marriage of his sister, but D.B.Raman became furious and threw his application and abused him by saying “Sale Harijan Yahan Se Bhago” and when this complainant opposed then this petitioner and D.B.Raman both assaulted him and pushed him outside the office before other employees and abused him again by naming his caste. On the above allegation, the aforesaid case was filed showing commission of offence punishable under Sections 341, 323, 506 and 384 of I.P.C. and also under Sections 3(1) and (2) (vii) of Schedule Castes & Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Act”). After the examination of the complainant on solemn affirmation and three other witnesses namely Anil Bhagti, Ram Prasad and Krishna Mandal, the Chief judicial Magistrate not being satisfied with the allegation made against the accused dismissed the complainant by order dated 01.03.2001. 3. After the examination of the complainant on solemn affirmation and three other witnesses namely Anil Bhagti, Ram Prasad and Krishna Mandal, the Chief judicial Magistrate not being satisfied with the allegation made against the accused dismissed the complainant by order dated 01.03.2001. 3. The complainant being aggrieved by the said order preferred a revision before the 5th Additional Sessions Judge, Dhanbad bearing Criminal Revision No. 42 of 2001, who after hearing the parties found a prima facie case against the accused and, accordingly, set aside the order dated 01.03.2001 passed by the Chief Judicial Magistrate and remanded the matter back to the court for reviewing the same afresh after going into the evidence on record and relevant provisions of law. The petitioner along with co-accused D.B.Raman preferred a revision before the Hon’ble High Court against the said order dated 27.09.2001 and assailed that the order passed by the revisional court is bad in law as the court has given direction to review the same afresh though in the entire Criminal Procedure Code, there is no provision for review of an order. This Hon’ble Court by order dated 26.04.2002 passed in Cr.M.P. No. 5104 of 2001 clarified that the directions issued by the Additional Sessions Judge in revision was in fact a direction for further enquiry to be conducted by the Chief Judicial Magistrate and not for reviewing its earlier order. Thereafter, the Chief Judicial Magistrate recorded the depositions of the complainant as also of the witnesses afresh and found a prima facie case against the accused persons including this petitioner and, accordingly, directed to issue summons. The petitioner being aggrieved by the said order again preferred a revision before Additional Sessions Judge, but the same was dismissed holding that the materials on record before the court did make out a prima facie case against the accused persons and there was no legal infirmity in the order directing issue of summons to the accused persons. The petitioner, thereafter, preferred an application under Section 482 of the Code before this Court but the same was also dismissed. The petitioner against the order of dismissal of the High Court preferred Criminal Appeal bearing no. The petitioner, thereafter, preferred an application under Section 482 of the Code before this Court but the same was also dismissed. The petitioner against the order of dismissal of the High Court preferred Criminal Appeal bearing no. 1153 of 2004 before the Hon’ble Supreme Court, which was also dismissed by order 22nd October ,2010 holding as follows:- “A plain reading of the complaint filed by the complainant in the instant case makes out a case against the accused. Not only that the depositions of the three witnesses examined by the complainant in support of his complaint also support the allegations made in the complaint. The Magistrate was, therefore, justified in taking cognizance against the appellant and the co-accused. The revisional Court of Additional Sessions Judge, Dhanbad, was also correct in holding that a case for issue of process has been made out. Such being the position the High Court committed no error in declining to interfere under Section 482 of Cr.P.C. nor is there any reason for us much less a compelling one to take a view different from the one taken by the High Court.” Before the Hon’ble Supreme Court, question was also raised that after remand, the Chief Judicial Magistrate examined the complainant and other witnesses afresh, which was beyond his jurisdiction but the Hon’ble Supreme Court in the above order further held as follows:- “In as much as the Magistrate in the instant case summoned the witnesses and examined them afresh, he may have gone beyond what was legally necessary to do but that is no reason to hold that the recording of evidence by the Magistrate as a part of the further enquiry directed by the High Court would vitiate the proceedings before him or the conclusion drawn on the basis of any such enquiry. So long as the Magistrate was satisfied that a prima faice case had been made out, he was competent to issue summons to the accused.” It further appears from the record that as the matter was triable by a Court of Sessions Judge as envisaged in the Act, the case was transferred to the Court of Additional Sessions Judge- I- cum- Special Judge, Dhanbad and before that Court, the petitioner filed a petition for discharge under Section 227 of the Code but the said court by the impugned order dated 05.02.2014 dismissed the petition holding as follows:- “From perusal of record, it appears that there is direct allegation against the co-accused. So far this petitioner is concerned, there is composite allegation against him. It is true the petitioner is working in M/s. Tata Steel Limited. It is a private company, therefore Section 3(2) (vii) of the Act cannot be applicable but so far as the rest of the offences under Sections 341, 323, 506 I.P.C. and 3(1) and (X) of the SC/ST (Prevention of Atrocities) Act are concerned, in the given facts and circumstances of the case, there is prima facie sufficient materials against this petitioner for framing of charge.” Hence this revision. 4. Mr. Binod Kumar Kanth, learned senior counsel contended that even if all the allegations incorporated in the complaint are taken to be true, no offence is made out under the provisions of the SC/ST (Prevention of Atrocities) Act and also in different provisions of the Indian Penal Code. It was also contended that the present case is the best example of malicious prosecution as earlier also, the opposite party no.2 (the complainant) had filed complaints against this petitioner and other persons under different provisions of the said Act and the conduct of the petitioner would be clear from the fact that subsequently a departmental proceeding was initiated against him and he was dismissed from his service on 04.12.2000. Whereafter the matter was referred to the Industrial Tribunal and against the order of the Tribunal, the opposite party no.2 preferred writ before the Hon’ble High Court but the same was also dismissed and L.P.A. preferred against the order of writ was also dismissed. The Industrial Tribunal had found the opposite party no.2 as an undisciplined workman as he had filed cases against his superiors. Learned counsel relying upon a case Gorige Pentaiah Vs. The Industrial Tribunal had found the opposite party no.2 as an undisciplined workman as he had filed cases against his superiors. Learned counsel relying upon a case Gorige Pentaiah Vs. State of Andhra Pradesh and others ; (2008) 12 SCC 531 submitted that in view of the ratio laid down in the above case, it is now mandatory for the complainant to mention in complaint petition that the accused is not a member of the Schedule Caste or Schedule Tribe and he intentionally insulted or intimidated with intent to humiliate respondent no.2 in a place within public view. But in the instant case, even the basic ingredients of the offence as held in the above case are missing and thus permitting such a complaint to continue and to compel the petitioner to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of the process of law. It was also submitted that there are no materials on record to show that any offence under Section 341, 323 and 506 of the I.P.C. was committed by the petitioner and at best the allegation even if is there, it is against the co-accused D.B.Raman and no specific allegation is there against this petitioner. Hence, the petitioner deserves to be discharged. 5. Refuting the contentions advanced on behalf of the petitioner, learned counsel representing the opposite party no.2, the complainant, submitted that there is no illegality or irregularity in the order impugned worth interference in the revisional jurisdiction and at the stage of framing of charge, roving enquiry into the pros and cons of the matter is not at all permissible and mere presence of grave suspicion and strong prima faice case are sufficient to frame the charge. It was also submitted that the Hon’ble Supreme Court while dismissing the appeal filed by the petitioner against the order taking cognizance had found sufficient prima faice case against the petitioner. 6. Being quite conscious of the fact that the trial would be at its very threshold and that in this application, this Court is dealing with the limited aspect of the petitioner being charged or being discharged, I would like to examine the scope of Section 227 of the code. The law at this point is succinctly analyzed by the Hon’ble Supreme Court in Sajjan Kumar Vs. The law at this point is succinctly analyzed by the Hon’ble Supreme Court in Sajjan Kumar Vs. CBI [ (2010) 9 SCC 368 ] wherein the Hon’ble Court has observed in para 19 as under: “ 19. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” In another judgment State through Inspector of Police Vs. A. Arun Kumar and Anr. [2015(1) East Cr. C. 450 (S.C.)], the Hon’ble Supreme Court on consideration of the authorities about the scope of 227 and 228 of the Code, held as follows:- (i) “The Judge while considering the question of framing the charges under Section 227 of the Cr PC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, to sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 7. From the above ratio decided by the Hon’ble Supreme Court, it is clear that at the initial stage, if there is strong and grave suspicion for presuming that the accused has committed an offence, in that event, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. Apparently in the instant case, the learned court below took cognizance of the offence after examination of the present opposite party no.2 (the complainant) on solemn affirmation and three witnesses and all the witnesses supported the allegation made in the complaint case. Apparently in the instant case, the learned court below took cognizance of the offence after examination of the present opposite party no.2 (the complainant) on solemn affirmation and three witnesses and all the witnesses supported the allegation made in the complaint case. The matter went up to the Hon’ble Supreme Court and the Court in paragraph-7 of the order dated 22nd October, 2010, (order quoted above in paragraph-3) found that a plain reading of the complaint filed by the complainant in the instant case makes out a case against the accused. Not only that the depositions of the three witnesses examined by the complainant in respect of his complaint also supported the allegations made in the complaint. It is true that in a complaint case, there is no much difference in the stage of order taking cognizance and framing of charge as the evidences available before the court at the time of taking cognizance and framing of charge are almost the same. The Court at the stage of framing charge has not only to see the prima facie case rather the court has to see the strong and grave suspicion and sufficient materials to frame charge. Merely because the opposite party no.2 was found to be undisciplined workman by an Industrial Court on the ground that he had filed cases against his superiors cannot be a good ground for discharge of the petitioner from the allegations made against him in the instant case. Mere perusal of the complaint petition and the evidences of three witnesses available on record, there appears to be strong and grave suspicion against this petitioner if the same is read in composite manner with the allegations against another accused D.B. Raman. This is not the stage where the Court has to see whether the trial will end in conviction or not but the Court has to look into veils of allegations within the framework or the guidelines given in the above cases of Sajjan Kumar Vs. CBI (supra) and State through Inspector of Police Vs. A. Arun Kumar and Anr (supra). Apparently, the complainant was abused by naming his caste in public view, hence a strong and grave suspicion is there for presuming that the offence has been committed and there is composite allegation against this petitioner also. CBI (supra) and State through Inspector of Police Vs. A. Arun Kumar and Anr (supra). Apparently, the complainant was abused by naming his caste in public view, hence a strong and grave suspicion is there for presuming that the offence has been committed and there is composite allegation against this petitioner also. The court below while dealing with this aspect has rightly observed that in the given facts and circumstances of the case, there is prima facie sufficient materials against this petitioner for framing charge. It is true that on perusal of the case filed by the opposite party no. 2, it is not specifically incorporated that the accused persons including this petitioner were also the members of the Schedule Caste and Schedule Tribe or not but it can be easily inferred that the way the accused D.B.Raman and this petitioner abused the opposite party no.2 by naming his caste, they cannot be the members of the same community otherwise they would not have abused him by naming his caste. 8. In view of the authoritative pronouncements and principles laid down in the above cases, the Court has only to look into the broad probabilities of the case, the strong suspicion and the sufficiency of materials on record for framing charge. This court sitting in revision has a very limited jurisdiction. I do not find any illegality or impropriety in the order impugned. 9. The revision application, being devoid of any merit, is accordingly, dismissed.