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Jharkhand High Court · body

2019 DIGILAW 1084 (JHR)

Umesh Agarwal v. State of Jharkhand

2019-05-18

RONGON MUKHOPADHYAY

body2019
ORDER : Heard Mr. Anjani Kumar Singh, learned counsel for the petitioners in all cases, Mr. Shailesh, learned counsel appearing for the opposite party no. 2 in Cr. M.P. No. 1353 of 2016 and Cr.M.P. No. 1303 of 2016 and Mr. Shekhar Prasad Sinha, learned counsel appearing for the opposite party no. 2 in Cr.M.P. No. 2755 of 2016. 2. Since it has been claimed by the learned counsel for the petitioners that the petitioners are being maliciously prosecuted at the behest of one Pawan Kumar Agarwal who had set up separate complainants who had instituted two other cases all the matters are being disposed of by this common order. Cr.M.P. No. 1303 of 2016 3. In this application the petitioners have prayed for quashing of the entire criminal proceedings in connection with C.P. Case No. 510 of 2015, including the order dated 15.06.2015 passed by the learned S.D.J.M., Dhanbad by which cognizance has been taken for the offences punishable under Sections 341, 323 and 504 of the Indian Penal Code. 4. A complaint case was instituted in which it was alleged that on an earlier occasion the complainant had given an application on 18.11.2004 to the Deputy Commissioner, Dhanbad on account of the fact that the accused persons had abused the sister of the complainant and had cast insinuations about her caste. It has been alleged that on 17.02.2015 at about 8.00 P.M., the accused persons along with some other persons trespassed into the house of the complainant and by abusing the complainant assaulted her and snatched away Rs. 500/-from the pocket of the complainant. It has been alleged that they abused the complainant in the name of her caste and when the elder sister of the complainant tried to calm down the situation she was also abused by calling her “Chamarin” and pushed by the accused which resulted in her sustaining injuries upon her head. Upon conducting an inquiry cognizance was taken for the offences punishable under Sections 341, 323 and 504 of the Indian Penal Code vide order dated 15.06.2015 which is the order impugned to the present application. Cr.M.P. No. 1353 of 2016 5. Upon conducting an inquiry cognizance was taken for the offences punishable under Sections 341, 323 and 504 of the Indian Penal Code vide order dated 15.06.2015 which is the order impugned to the present application. Cr.M.P. No. 1353 of 2016 5. The sole petitioner in this application has prayed for quashing of the entire criminal proceedings in connection with C.P. Case No. 2199 of 2015 including the order dated 23.01.2016 passed by the learned Judicial Magistrate, Dhanbad by which cognizance has been taken for the offences punishable under Sections 323, 504 and 354A of the Indian Penal Code. 6. It has been alleged in the complaint petition instituted by the opposite party no. 2 that the accused persons had forcible entered in the house of the complainant on 05.08.2015 at about 9.00 A.M., and pressed her to come with her brother at their shop at about 7.00 P.M., for settlement of the earlier case filed by her brother. It has been further alleged that the complainant and her brother Sudama Paswan reached the shop of the accused persons namely Goyal Auto Spares on 05.08.2015 but the accused persons induced the complainant to come to their house so that the documents may be prepared in order to arrive at a proper settlement. Allegation has been levelled that on the inducement of the accused persons the complainant and his brother reached the house of the accused at which the accused no. 1 had directed the brother of the complainant to bring 'Revenue Stamp' and 'Xerox paper' from the market and had also sent the accused no. 2 with her brother. It has been alleged that thereafter the accused no. 1 started using filthy language and upon assaulting the complainant had forcibly tried to outrage her modesty. The complainant somehow managed to flee away and thereafter narrated the entire story to her brother but since the Police did not institute the First Information Report the complaint case was lodged. Upon conducting an inquiry cognizance was taken on 23.01.2016 by the learned Judicial Magistrate, Dhanbad for the offences punishable under Sections 323, 504 and 354A of the Indian Penal Code. Cr.M.P. No. 2755 of 2016 7. Upon conducting an inquiry cognizance was taken on 23.01.2016 by the learned Judicial Magistrate, Dhanbad for the offences punishable under Sections 323, 504 and 354A of the Indian Penal Code. Cr.M.P. No. 2755 of 2016 7. In this application the petitioners have prayed for quashing of the entire criminal proceedings including the order dated 03.10.2016 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No. 2569 of 2015, by which cognizance has been taken for the offences punishable under Sections 420, 506/34 of the Indian Penal Code. 8. In the complaint petition it has been alleged that the petitioner nos. 1 and 2 had removed page no. 5 of the registered Partition Deed for settling the property dispute between the petitioner no. 1 and the complainant and after alleged removal of page no. 5 they had fraudulently typed and changed the square feet area of the terrace from 1797 sq. ft. to 1494 sq. ft. It has also been alleged that as per the earlier arrangements the terrace was supposed to be divided into two parts i.e. 1797 sq. ft. was supposed to be used and occupied by the complainant and the rest portion of 1119 sq. ft. was to be occupied by the petitioner no. 1. Based on the aforesaid allegations C.P. Case No. 2569 of 2015 was instituted in which after conducting an inquiry cognizance was taken by the learned Judicial Magistrate, 1st Class, Dhanbad for the offences punishable under Sections 420, 506/34 of the Indian Penal code. 9. Mr. Anjani Kumar Singh, learned counsel for the petitioners has advanced a composite argument on behalf of the petitioners engulfing all the three cases. It has been stated, at the outset, that the allegations levelled against the petitioners especially the petitioner Umesh Agarwal who is the common accused in all the three cases would reveal the malicious intent of the complainants who are hand in gloves with each other. It has been stated that so far as Cr.M.P. No. 1303 of 2016 is concerned both the petitioners are brothers and the petitioner no. 1 Umesh Agarwal is in the Indian Revenue Service and is presently posted at Mumbai as Deputy Commissioner of Income Tax. Mr. It has been stated that so far as Cr.M.P. No. 1303 of 2016 is concerned both the petitioners are brothers and the petitioner no. 1 Umesh Agarwal is in the Indian Revenue Service and is presently posted at Mumbai as Deputy Commissioner of Income Tax. Mr. Singh, furthers his argument by stating that in the year 2000 a property was acquired by the father of the said petitioner along with a close acquaintance namely Pawan Kumar Agarwal but after sometime their surfaced dispute with regard to the sharing of the profit from the rented out premises. It has been submitted that the dispute was settled time and again but ultimately when it failed a legal notice was issued to Pawan Kumar Agarwal on behalf of the father of the petitioner. It has been stated that the father of the petitioner had instituted three cases against Pawan Kumar Agarwal which included an application for rent before the House Rent Controller, a suit for damages and a suit for partition and rendition of accounts. Learned counsel submits that C.P. Case No. 510 of 2015 was instituted by Sudama Paswan and so far as C.P. Case No. 2199 of 2015 is concerned the same was instituted by the sister of Sudama Paswan. It has been submitted that in the complaint instituted by Sudama Paswan his sister is a witness whereas in the complaint instituted by Sheela Devi, Sudama Paswan is a witness. It has been stated that so far as the petitioner Umesh Agarwal is concerned there is no specific allegation against him in C.P. Case No. 510 of 2015 as well as in C.P. Case No. 2569 of 2015 and as regard C.P. Case No. 2199 of 2015 on the face of it the allegation appears to be absurd and improbable. Learned counsel has referred to the various supplementary affidavits filed by him wherein he has stated that the malicious prosecution of the petitioner Umesh Agarwal is apparent from the fact that a complaint was also made to Member (Personnel & Vigilance), C.B.D.T., North Block, New Delhi to malign the reputation of petitioner no. 1. Learned counsel has referred to the various supplementary affidavits filed by him wherein he has stated that the malicious prosecution of the petitioner Umesh Agarwal is apparent from the fact that a complaint was also made to Member (Personnel & Vigilance), C.B.D.T., North Block, New Delhi to malign the reputation of petitioner no. 1. It has further been submitted that the petitioner Umesh Agarwal is working at Mumbai and therefore in terms of Section 202 Cr.P.C., an inquiry should have been conducted by the learned Magistrate either by himself or through an investigation by the Police since the petitioner resides outside the territorial jurisdiction of the learned Magistrate and it is common knowledge that people at far off places for the purposes of harassment are roped in criminal cases. Learned counsel submits that the complainants in all the cases have surreptitiously not given the address of the petitioner Umesh Agarwal at Mumbai so as to escape the provision of Section 202 Cr.P.C. with respect to conducting an inquiry. It has also been stated that as regards the petitioner Dinesh Agarwal is concerned he also does not seem to be having specific allegation and the parents of the petitioner Umesh Agarwal have been implicated by way of a retaliation to the various cases instituted by the father of Umesh Agarwal. Concluding thus Mr. Anjani Kumar Singh learned counsel for the petitioner submits that the entire criminal proceedings deserves to be quashed and set aside. 10. Mr. Shailesh, learned counsel appearing in Cr.M.P. No. 1303 of 2016 and Cr.M.P. No. 1353 of 2016 has relied on the allegations made in the complaint petition and has stated that it would be premature at this stage to look into the defense of the accused as a prima facie case is made out against the petitioners. It has further been submitted that the petitioners in the said cases have been alleged to have caused abuse and assault upon the complainant Sudama Paswan and his sister and had followed it up by outraging the modesty of the sister of the complainant which led to institution of another complaint case. Learned counsel further submits that an inquiry was conducted by the learned Magistrate in terms of Section 202 Cr.P.C., and therefore it cannot be said that the learned Magistrate had committed an error of law while taking cognizance and issuing summons to the petitioners. 11. Learned counsel further submits that an inquiry was conducted by the learned Magistrate in terms of Section 202 Cr.P.C., and therefore it cannot be said that the learned Magistrate had committed an error of law while taking cognizance and issuing summons to the petitioners. 11. In Cr.M.P. No. 2755 of 2016 the opposite party no. 2 being represented by Mr. Shekhar Prasad Sinha has submitted that the complaint petition which is the subject matter of the said application clearly reveals an allegation of replacing page no. 5 of the Deed wherein the share of the said complainant was drastically reduced and such forgery being manifest in the complaint petition itself the said application also deserves to be dismissed. 12. The rival contentions advanced by the learned counsels have been considered and the materials on record have been gone through. 13. In Cr.M.P. No. 1303 of 2016 the same is for quashing of the entire criminal proceedings in connection with C.P. Case No. 510 of 2015. A perusal of the complaint petition reveals that the allegations have been attributed to the accused no. 1 (petitioner no. 2 herein). In the said application a supplementary affidavit has been filed from which it appears that complaint was made against the petitioner no. 1 before the Member (Personnel & Vigilance), C.B.D.T., North Block, New Delhi. In the complaint petition though it has been stated about the assault and abuse but in the solemn affirmation a new story seems to have been created to the effect that the complainant had taken Rs. 15,000/-as loan from the accused persons which he had not returned. It is to be noted herein that on cognizance being taken on 15.06.2015 in C.P. Case No. 510 of 2015 the requisites were submitted by the complainant on 14.08.2015 for issuance of summons to the accused persons. 14. In Cr.M.P. No. 1353 of 2016 the allegation made in C.P. Case No. 2199 of 2015 appears to be with respect to outraging of modesty of the said complainant specifically by the petitioner Umesh Agarwal. However, the said complaint petition is fraught with discrepancies as it has been stated that the reason for calling the complainant and her brother by the accused persons on 05.08.2015 was for settlement of the dispute. However, the said complaint petition is fraught with discrepancies as it has been stated that the reason for calling the complainant and her brother by the accused persons on 05.08.2015 was for settlement of the dispute. As has been indicated above in the C.P. Case No. 510 of 2015 the cognizance was taken on 15.06.2015 and the requisites were submitted on 14.08.2015 which would indicate that prior to issuance of summons and service of summons upon the accused the talk of settlement of the said case was proceeding. The complainant in C.P. Case No. 2199 of 2015 is a witness in C.P. Case No. 510 of 2015 whereas the complainant in C.P. Case No. 510 of 2015 is a witness in C.P. Case No. 2199 of 2015. 15. It appears that both the brother and sister have made allegation against the petitioners at random and it has been stated by the learned counsel for the petitioners that the same has been done at the instance of Pawan Kumar Agarwal against whom the father of the petitioner Umesh Agarwal had instituted several cases. The bone of contention appears to be the property which was acquired by the father of the petitioner along with Pawan Kumar Agarwal since the said Pawan Kumar Agarwal had also instituted C.P. Case No. 2569 of 2015 in which once again no specific allegation has been levelled against the petitioner Umesh Agarwal and he seems to have been arrayed as an accused on account of being the son of Prem Kumar Agarwal the erstwhile partner of Pawan Kumar Agarwal. 16. The sequential events narrated above would go to show that so far as the petitioner Umesh Agarwal is concerned a malicious prosecution has been thrust upon him by the complainants by instituting three separate cases. So far as C.P. Case No. 510 of 2015 is concerned the same was immediately followed by C.P. Case No. 2199 of 2015 at the behest of Sudama Paswan and his sister. Even if, it is assumed that Sudama Paswan had taken a loan of Rs. 15,000/-from the accused persons as per the version given by him in the solemn affirmation and he had not returned the amount the same can be attributed to be a reason for implicating the petitioners in C.P. Case No. 510 of 2015 and C.P. Case No. 2199 of 2015. 15,000/-from the accused persons as per the version given by him in the solemn affirmation and he had not returned the amount the same can be attributed to be a reason for implicating the petitioners in C.P. Case No. 510 of 2015 and C.P. Case No. 2199 of 2015. At the cost of repetition it must once again be noted that in C.P. Case No. 510 of 2015 specific allegation has only be levelled against the petitioner no. 2 Dinesh Agarwal. In view of the specific nature of allegation against the petitioner no. 2 in Cr.M.P. No. 1303 of 2016, I am not inclined to consider his prayer and accordingly this application stands rejected as against the petitioner no. 2 (Dinesh Agarwal). 17. So far as Cr.M.P. No. 2755 of 2016 is concerned once again it is reiterated that the complaint petition reveals about the name of the petitioner being the son of Prem Kumar Agarwal and here also the petitioner Umesh Agarwal has been made an accused without attributing any role in the allegation of forgery by replacing page no. 5 of the Partition Deed and reducing the area which the complainant in the said case claims to be his own as per his share. 18. As regard the petitioner nos. 1 and 2 in Cr.M.P. No. 2755 of 2016 is concerned both the said petitioners had agreed to get a Partition Deed registered in the Registry Office, Dhanbad which subsequently led to the fraudulent exercise as alleged by the complainant and in view of the specific nature of allegations levelled against the petitioner no. 1 and 2, I am not inclined to entertain Cr.M.P. No. 2755 of 2016 so far as the other petitioners are concerned. 19. In Cr.M.P. No. 1353 of 2016 the sole petitioner is Umesh Agarwal against whom an allegation of outraging of modesty has been made but as has been stated above the issue of settlement which led to the purported incident seems to be a misnomer as the date on which the complainant was called to the house of the said petitioner not even the summons were issued in the complaint instituted by Sudama Paswan. Apart from what has been discussed above it is indeed manifest on consideration of the factual aspects of each of the complaints that the petitioner Umesh Agarwal seems to be the person who is in the radar of the complainants for being prosecuted and one of the complainants in fact has also gone to the extent of making a complaint before the Member (Personnel & Vigilance), C.B.D.T., North Block, New Delhi in order to malign the reputation of the said petitioner. 20. In the case of “State of Haryana Vs. Bhajan Lal” reported in 1992 Supp (1) SCC 335, the following grounds were enumerated which can lead to quashment of criminal proceedings and the same reads as under: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (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. (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. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 21. The factual aspects of the case reveal that there is a malicious intent on the part of the complainants and the allegations in some respect appears to be highly improbable and absurd so far as the petitioner Umesh Agarwal is concerned. Learned counsel for the petitioners has also referred to the case of “Abhijit Pawar Vs. Hemant Madhukar Nimbalkar” reported in (2017) 3 SCC 528 which has dealt with the powers of Section 202 Cr.P.C., wherein accused resides at a place beyond the area in which he exercises his jurisdiction. Learned counsel for the petitioners has also referred to the case of “Abhijit Pawar Vs. Hemant Madhukar Nimbalkar” reported in (2017) 3 SCC 528 which has dealt with the powers of Section 202 Cr.P.C., wherein accused resides at a place beyond the area in which he exercises his jurisdiction. The said pronouncement has recently been followed in the case of “Birla Corporation Limited versus Adventz Investments and Holdings Limited” in Cr. Appeal No. 875/2019. All the complainants have mentioned about the address of the petitioner Umesh Agarwal at Jharia, Dhanbad although one of the complainants knowing fully well about the place of stay of the said petitioner had made a complaint but in a deliberate fashion the address of petitioner Umesh Agarwal was not given correctly. Since the petitioner no. 1 resides at Mumbai an inquiry should have been conducted by the learned Magistrate or he could have directed an investigation to be made by a Police Officer or by such other person as he thinks fit before issuing process against the petitioner Umesh Agarwal. However, it must be borne in mind that the complainants very cleverly had not disclosed about the residential address of the petitioner Umesh Agarwal at Mumbai but even then an inquiry was indeed conducted by the learned Magistrate in separate cases by examining the complainant and other witnesses but as would be apparent on lifting the veil in all the three cases the malicious prosecution of the petitioner Umesh Agarwal comes to the fore. 22. In view of what has been discussed above all these applications stand allowed so far as the petitioner Umesh Agarwal is concerned and the entire criminal proceedings as against him being C.P. Case No. 510 of 2015, C.P. Case No. 2199 of 2015 and C.P. Case No. 2569 of 2015 including the respective order taking cognizance is hereby quashed and set aside. 23. So far as the rest petitioners in Cr.M.P. No. 1303 of 2016 and Cr.M.P. No. 2755 of 2016 as has been indicated above there being a prima facie case made out against the said petitioners, I am not inclined to entertain the said applications which are accordingly disposed of with a liberty to the said petitioners to raise all their points at the appropriate stage. 24. All these applications stand disposed of in the manner indicated above.