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2018 DIGILAW 1092 (ALL)

MAHABIR TYAGI v. STATE OF U. P.

2018-05-03

AMAR SINGH CHAUHAN

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JUDGMENT : AMAR SINGH CHAUHAN, J. 1. Heard Sri Abhitab Kumar Tiwari, learned counsel for the applicants and learned AGA for the State. Despite sufficient service, opposite party no. 2 did not turn up but learned AGA has filed counter affidavit. 2. The applicants, Mahabir Tyagi and three others, through this application under section 482 Cr.P.C., 1973 have invoked the inherent jurisdiction of the Court with a prayer to quash the charge sheet dated 25.5.2004 in Criminal Case No. 200/9 of 2004 (State v. Raju Tyagi and others) under sections 147, 323, 506, 427, 342 IPC and 3(1)10 SC/ST Act, Police Station Sardhana, District Meerut and further prayed to stay the aforesaid proceeding. 3. Brief facts which are requisite to be stated for adjudication of this application are that the First Information Report was lodged by the opposite party no. 2 on 26.3.2004 with the allegation that applicants along-with 42 to 50 unknown persons have demolished the house of which he was the tenant. They had damaged the furniture's and looted the household articles and by doing indecent behaviour, they also beaten him and his family members. The case was registered as Case Crime No. 103 of 2004 under sections 395, 427, 385 IPC and 3(2)5 SC/ST Act. The Investigating Officer after concluding the investigation submitted charge sheet under sections 147, 323, 506, 427, 342 IPC and 3(1)10 SC/ST Act. Thereafter learned Magistrate took the cognizance. 4. Feeling aggrieved, the applicants moved this application before this Court. 5. It is submitted by learned counsel for the applicants that neither the applicants caused any injury to anybody nor anybody sustained any injury. No offence is committed by the applicants. The Investigation Officer has collected so may evidence and from bare perusal of this evidence, which was collected by the Investigation Officer, it is clear that there are not sufficient evidence submitted for charge sheet against the applicants but the I.O. has illegally submitted the charge sheet against the applicants. The opposite party no. 2 has no right over the building in dispute but his father Raj Kumar was claiming himself as a tenant in the aforesaid building. Several notices were issued but he claimed before any authority concerned himself as a tenant. The opposite party no. 2 has no right over the building in dispute but his father Raj Kumar was claiming himself as a tenant in the aforesaid building. Several notices were issued but he claimed before any authority concerned himself as a tenant. It is submitted that the applicants have simply complied the order passed by SDM Sardhana under section 133 Cr.P.C., 1973 and notice given by Nagar Palika Parishad, Sardhana Meerut under section 243 of U.P. Nagar Palika Act and the applicants were bound to comply the same. It is further submitted that according to the sections 76 and 78 of Indian Penal code it is not offence if any act has done in compliance of the order passed by the court. It is submitted that Investigation Officer has recorded several independent witnesses who did not support prosecution version but without considering their statements Investigation Officer has submitted the charge sheet even the I.O. has not mentioned their names in list of witnesses. On this ground, the charge sheet is defective and likely to be quashed. It is submitted that the I.O has visited the Nagar Palika Parishad Sardhana, Meerut and he found that the house has been demolished in compliance of the order of the competent authority and he mentioned this fact in case diary (G.D.) but without consideration this fact submitted the charge sheet. It is submitted that I.O. himself recorded his conclusions that some allegations have been found false and building has been demolished in compliance of the order of competent authority even he submitted the charge sheet. It is submitted that from perusal of the evidence collected by Investigation Officer during investigation no prima facie case is made out against applicants. Further submission is that no offence under section 3(1)10 SC/ST Act is also made out against applicants. There is neither any allegation in FIR nor in the statement of any witnesses that applicants used any word or did any act at public place (even at any place) with intention to humiliate to opposite party no. 2 or any other person being them member of a Scheduled Caste and only on the ground that informant belongs to Scheduled Caste and some incident/dispute took place with him, neither offence under section 3(1)10 SC/ST Act is made out nor applicants can be prosecuted for this offence. The act of applicants are protected by Section 78 of IPC. 2 or any other person being them member of a Scheduled Caste and only on the ground that informant belongs to Scheduled Caste and some incident/dispute took place with him, neither offence under section 3(1)10 SC/ST Act is made out nor applicants can be prosecuted for this offence. The act of applicants are protected by Section 78 of IPC. There was a house belonging to applicant no. 1 and there is allegation that house was demolished by applicants with the help of other persons but house was demolished in compliance of order of S.D.M. Sardhana Meerut passed under section 133 of Cr.P.C., 1973 and notices issued by Nagar Palika Parishad under section 263 of U.P. Nagar Palika Act. Both are covered under court (sections 19 and 20 of IPC) from the flowing facts and documents (which is documents of prosecutions itself) it is clear that applicants did everything in compliance of order of competent authority. 6. Per contra learned AGA contends that Investigating Officer after concluding the evidence submitted the charge sheet and the applicants, in the disguise of order of SDM, instead of removing of southern wall, demolished the whole building and also caused damage to the household articles of opposite party no. 2. Nobody can be permitted to take the law in its own hands. 7. The scope and ambit of power under section 482 Cr.P.C., 1973 has been examined by Hon'ble Apex Court in Union of India v. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows: "The grounds on which power under Section 482 Cr.P.C., 1973 can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or 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 un-controverted 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, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection". 8. But this power has to be exercised in a rare case and with great circumspection". 8. In the case in hand applicants are the owner of the house in question and opposite party no. 2 is the tenant. There was some litigation for ejectment between the parties. The SDM concerned has passed the order that the southern wall is in dilapidated condition and likely to fall on the passage used by the public and direction was issued to demolish the wall on 26.2.2004 but the applicants in the disguise of that order demolished the whole building rented out to the opposite party no. 2. 9. So far as submission of the applicants is that the alleged act does not attract the section 3(1)10 SC/ST Act as applicants did not use any word or did any act at public place with intention to humiliate the opposite party or any member of the family. The opposite party no. 2 made allegation that applicants along-with 42 to 50 miscreants assaulted by doing indecent behaviour in public view. 10. The Hon'ble Supreme Court in case of Swaran Singh and others v. State through Standing Counsel and another, 2008 Law Suit SC 1288 has held that there is a clear distinction between the two expressions 'public view and public place' a place can be private place but yet within the public view. There is an allegation substantiated with the evidence that the intent of the applicants was to insult or humiliate the first informant and their family members and this was done with a public view. 11. From the perusal, it appears that on the basis of the material collected by the I.O. prima facie offence is made out, therefore, there is no irregularity or illegality in filing the charge-sheet. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C., 1973 Only in cases where the court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process or miscarriage of justice. 12. In view of the above discussion, I find no reason to interfere in the proceedings and refuse to quash the proceedings in the aforesaid case. 12. In view of the above discussion, I find no reason to interfere in the proceedings and refuse to quash the proceedings in the aforesaid case. No illegality or demerit is found in the impugned charge sheet. 13. The application has no substance and is, accordingly, rejected. 14. Interim order, if any, stands vacated. 15. Communicate this order to the court concerned.