Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 846 (JK)

Sunil Singh v. Joginder Kumar

2017-09-14

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. In this petition, the petitioners seek quashment of proceedings and all the orders passed by the learned Sub-Judge Ramnagar against the petitioners in complaint No.12 dated 15th May, 2006 titled, “Joginder Kumar Vs. Om Parkash and ors.” under sections 447, 448, 427, 147 and 506 of RPC, whereby the Court below took the cognizance, the process was issued and the charge has been framed against the petitioners and proforma respondents. 2. The facts giving rise to the filing of the petition briefly stated are that, the respondent herein had filed a complaint (Annexure-A) against the petitioners and performa respondents under sections 447, 448, 427, 147 and 506 of RPC, which is pending disposal before the Court of learned Sub-Judge, Ramnagar and the next date of hearing was fixed on 28th March, 2010. The aforesaid complaint was filed by the respondent on 15th May, 2006 before the learned Sub-judge, Ramnagar and the process was issued against the petitioners and performa respondents by the learned Sub-Judge, Ramnagar. It needs to mention that by virtue of the order dated 16th February, 2010 (Annexure-B), charge has been framed against the petitioners and proforma respondents under Sections 447, 448, 427, 147 and 506 of RPC. The petitioners being aggrieved of the complaint and all the orders passed by the Trial Court, through the medium of present petition, challenges the inaction on the part of the respondent No. 1 and the proceedings before the Court below and the order of framing of charge mentioned herein above and craves the indulgence of this Hon’ble Court to quash the complaint and all the orders passed by the Trial Court against the petitioners. 3. Before coming to the grounds of challenge, it would be apt to give briefs of the case. The allegations contained in the complaint are that on 09th May, 2006, the petitioners alongwith proforma respondents came into the house of respondent No. 1/complainant and dragged him out of his house and demolished his house, which was constructed by the respondent No. 1/complainant on the State land. In his complaint, complainant has stated that he is in unlawful possession over the State land measuring 8 Kanals in Khasra No. 427/297 min/139 for the last ten years. 4. In his complaint, complainant has stated that he is in unlawful possession over the State land measuring 8 Kanals in Khasra No. 427/297 min/139 for the last ten years. 4. It is stated that the complaint filed by the respondent No 1/complainant is vexatious and all the allegations/assertions made in the complaint against the petitioners are totally false and without any substance and the petitioners here have been falsely implicated as accused in the complaint for the reasons best known to the respondent No. 1/complainant. The complaint filed by the respondent No. 1/complainant is simply a counter blast on the petitioners. The actual factual position is that the petitioners are the forest officials and the said land belongs to the Forest Department and is a demarcated forest. In the year 2002, the Forest Department made a forest closure on the said land. On 09th May, 2006, the petitioner No. 1 was posted as Range Officer, Ramnagar, North Range, petitioner No. 2 was posted as Range Officer, Ramnagar, South Range, petitioner No. 3 was posted as Block Officer, Kurta, Ramnagar and the petitioner No. 4 was posted as Forest Guard Kala beat. On 09th May, 2006, respondent No. 1/complainant was raising construction over the said land, which is a demarcated forests. The villagers alongwith Lambardar approached the concerned Tehsildar and informed him that respondent No. 1/complainant is raising construction over the said land, which belongs to the Forest Department. The Tehsildar suggested the villagers to approach the Divisional Forest Officers (in brevity, ‘the DFO’), Ramnagar and keep their grievance before the DFO. They approached the DFO and the DFO on a written communication directed the petitioner No. 1 to visit the spot and see what is going on the said land. The copy of the said communication is attached with the file of the Trial Court. On reaching the spot, the petitioner No. 1 found that respondent No. 1/complainant was raising construction over the forest land and he took photographs of the said land and informed the DFO about the construction being raised by the respondent No. 1/complainant. The said photographs are also attached with the Trial Court file. The villagers demolished the construction of respondent No. 1/complainant, which he was raising over the forest land. 5. The said photographs are also attached with the Trial Court file. The villagers demolished the construction of respondent No. 1/complainant, which he was raising over the forest land. 5. It is stated that without prejudice to the previous pleadings, if it is supposed that the construction raised by the respondent No. 1/complainant over the said forest land was demolished by the petitioners, even then also the petitioners were performing official act and sanction was required to be sought from the Government before proceeding against the petitioners. In the above said complaint, no prior sanction was obtained from the Government, so proceedings initiated against the petitioners by the Sub-Judge, Ramnagar require to be quashed. 6. It is stated that since the said land belongs to the Forest Department, so the petitioners cannot be booked under Sections 447 and 448 of RPC. Moreover, it needs mention that respondent No.1/complainant has stated in his complaint that he is in the illegal possession of the said land for the lasts ten years, but in the year 2006, he was 16 years of age, which means that he came into the illegal possession of the said land when he was 6 years of age. In the School Leaving Certificate (Annexure-D) issued by the Headmaster Government Primary School, Santhal, his date of birth was 08th September, 1990. 7. Respondent No.1/complainant even applied under Roshni Act for the transfer of the said land to respondent No. 1/complainant, but his said application was rejected on the ground that the said land belongs to the Forest Department. It needs to mention that respondent No. 1/complainant once again after the said incidence attempted to raise the construction over the said land and the FIR was registered against him. 8. It is stated that it is quite clear that the trial of petitioners before the learned Sub-Judge, Ramnagar is abusive of the process of the Court and it is causing undue inconvenience and harassment to the petitioners, who are the responsible officers of the Forest Department. The petitioners have no other efficacious remedy except to invoke the inherent jurisdiction of this Hon’ble Court to prevent the abuse of the process of law and secure the ends of justice. It is well within the competency of this Hon’ble Court to quash the proceedings before the Trial Court. The petitioners have no other efficacious remedy except to invoke the inherent jurisdiction of this Hon’ble Court to prevent the abuse of the process of law and secure the ends of justice. It is well within the competency of this Hon’ble Court to quash the proceedings before the Trial Court. In this case, the ingredients of any criminal offence are missing and the continuance of the trial shall be an exercise in futility leading to unnecessary harassment to the petitioners and abuse of the process of the Court. 9. It is stated that the learned Sub-Judge, Ramnagar has committed a grave procedural error in taking cognizance and issuing the process against the petitioners in the above mentioned complaint. The learned Sub-Judge, Ramnagar did not follow the provisions of Section 197 Cr.P.C. read with Section 42 of the Forest Act. 10. Heard learned counsel for both the sides and gone through the record. 11. The scope of interfering by High Court while exercising the inherent power for quashing the proceeding has been given in AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani & ors., wherein it is held as under:- 11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad, Jehan Singh v. Delhi Administration, Amar Nath v. State of Haryana, Kurukshetra University v. State of Haryana, State of Bihar v. J.A.C. Saldanha, State of West Bengal v. Swapan Kumar Guha, Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Bihar v. Murad Ali Khan and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:- “(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 uncontroverted 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, no 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 ground for proceeding 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 proceeding 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 mala fide 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.” 12. In present case, petitioners are the forest officials and the land was belonging to the Forest Department and is a demarcated forest. In the year 2002, the Forest Department made a forest closure on the said land. In present case, petitioners are the forest officials and the land was belonging to the Forest Department and is a demarcated forest. In the year 2002, the Forest Department made a forest closure on the said land. On 09th May, 2006, the petitioner No. 1 was posted as Range Officer, Ramnagar, North Range, petitioner No. 2 was posted as Range Officer, Ramnagar, South Range, petitioner No. 3 was posted as Block Officer, Kurta, Ramnagar and the petitioner No. 4 was posted as Forest Guard Kala beat. On 09th May, 2006, respondent No. 1/complainant was raising construction over the said land, which is a demarcated forest. The villager’s along with Lambardar approached the concerned Tehsildar and informed him that respondent No.1/complainant is raising construction over the said land, which belongs to the Forest Department. The Tehsildar suggested the villagers to approach the Divisional Forest Officers (in brevity, ‘the DFO’), Ramnagar and keep their grievance before the DFO. They approached the DFO and the DFO on a written communication directed the petitioner No. 1 to visit the spot and see what is going on the said land. The copy of the said communication is attached with the file of the Trial Court. On reaching the spot, the petitioner No. 1 found that respondent No. 1/complainant was raising construction over the forest land and he took photographs of the said land and informed the DFO about the construction being raised by the respondent No. 1/complainant. The villagers demolished the construction of respondent No. 1/complainant, which he was raising over the forest land. 13. Along with the petition, there is demarcation report dated 2.2.2009 of Kh.No.427/297/139 min situated at village Kela,Tehsil Ramnagar, which reveals that land is forest land; there is also annexed map; the case of complainant under Roshni Act has also been rejected as the land was held to be forest land. 14. The contents of complaint would reveal that complainant has alleged that he is in possession of 8 k of land under Kh. No. 427/297/139 min situated at village Kela, Tehsil Ramnagar over which he has raised the construction of one room with assistance of Govt. 14. The contents of complaint would reveal that complainant has alleged that he is in possession of 8 k of land under Kh. No. 427/297/139 min situated at village Kela, Tehsil Ramnagar over which he has raised the construction of one room with assistance of Govt. Scheme “Indira Avas Yojna” that he has filed a suit feeling threatening of dispossession against defendants in Sub Judge Court Ram Nagar; in which restraining order has been passed; that on 2.5.2006 at about 12 noon accused persons committed trespass into his land after forming unlawful agency and dismantled the house. Bare perusal of copy of girdawari annexed in complaint, it is evident that the land is State land. 15. The act of petitioners as per complainant is, thus, purported to have been done in the discharge of their official duties as forest officials and being public servant. 16. Narration of Section 197 Cr.P.C. and Section 42 of the Forest Act are necessary for deciding the instant petition, the same are reproduced hereunder:- 1. 197 Cr.P.C ------“When any person, who is Judge within the meaning of Section 19 of the Ranbir Penal Code (RPC) or when any Magistrate, or when any public servant, who is not removable from his office saves by or with the sanction of the State Government or the Government of India, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, not Court shall take cognizance of such offence except with the previous sanction:- (a) In the case of persons employed in connection with the affairs of the Union, of the Government of India and (b) In the case of persons employed in connection with the affairs of the State, of the Government. 2. The Government of India or the State Government, as the case may be, may determine the person by whom, the manner in which the offence or offences, for which the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court, before which the trial is to be held.” Section 42 of the Forest Act, is reproduced hereunder:- (1) “No suit or criminal proceeding or other legal proceeding shall be initiated against any public servant for anything done by him in good faith under this Act. (2) No Court shall take cognizance of any offence alleged to have been committed by a Forest Officer while acting or purporting to act in the discharge of his official duty except with the previous sanction of the Government.” 17. Bare perusal of Section 197 Cr.P.C ( supra), it is evident that Court has no power to take cognizance of such offence against public servant except with the previous sanction of Government, which in the present case is missing. Further in terms of Section 42 of the Forest Act, no suit or criminal proceeding or other legal proceeding can be initiated against any public servant for anything done by him in good faith under this Act. The court has also been debarred to take cognizance of any offence alleged to have been committed by a Forest Officer while acting or purporting to act in the discharge of his official duty except with the previous sanction of the Government. 18. So the present case falls under category (6) of above judgment (State of Telangana v Habib Abdullah Jeelani & ors.), wherein it is held that complaint can be quashed Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act under which a criminal proceeding is instituted, to the institution and continuance of the proceedings). 19. Magistrate is, thus, always required to see as to whether there is any legal bar in taking cognizance, before entertaining any complaint against public servant/s. This is not a mere formality, but legal directive to Magistrate, while exercising the power at the time of pre cognizance stage or post cognizance stage on complaint. 20. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. So it is always impressed upon the magistrate to look into the matter carefully and not casually at the time of exercising the power at pre cognizance stage or post cognizance stage on complaint. 21. The complaint in question and proceeding thereon are, thus, liable to be quashed. 22. In view of above discussion, this petition is allowed, the complaint titled “Joginder Kumar Vs. Om Parkash and ors.” under sections 447, 448, 427, 147 and 506 of RPC and all proceedings thereon, are quashed. The record of Court below along with this order be sent back.