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2022 DIGILAW 546 (JHR)

Umang v. Shah VS State of Jharkhand

2022-05-04

SANJAY KUMAR DWIVEDI

body2022
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Nilesh Kumar, learned counsel appearing for the petitioners in both cases, Mrs. Ruby Pandey, learned A.P.P. for the State and Mr. Onkar Nath Tiwary, learned counsel appearing for the O.P. No. 2 [in Cr. M.P. No. 60 of 2016] as well as Mr. S.K. Shukla, learned A.P.P. for the State and Mr. A.K. Choudhary, learned counsel appearing for the O.P. No. 2 [in Cr. M.P. No. 2607 of 2014]. 2. These petitions have been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. It has been submitted that on account of cancellation of power of attorney, granted by the petitioners to one Naresh Kumar Jani, a false case had previously been instituted, being C.P. Case No. 1275 of 2013, wherein the further proceeding was stayed by this Court in Cr. M.P. No. 2607 of 2014. In view of this submission, both the cases have been tagged together by order dated 09.01.2019, passed in Cr. M.P. No. 60 of 2016. Cr. M.P. No. 60 of 2016 4. This criminal miscellaneous petition has been filed for quashing of the order dated 30.03.2015, passed by the learned Judicial Magistrate, 1st Class, Bokaro as well as the entire criminal proceedings, in connection with C1 C.P. Case No. 569 of 2014, whereby cognizance has been taken against the petitioners, for the offences under Sections 323, 341, 324 and 379 of the Indian Penal Code, pending in the Court of learned Judicial Magistrate, 1st Class, Bokaro. 5. The complaint case was filed alleging therein that complainant is known to one Naresh Kumar Jani. On 21.11.2013 the said Naresh Kumar Jani had lodged a case against the petitioners being Complaint Case No. 1275 of 2013, in which, the complainant is a witness and is presently pending in the court of Shri Manish Ranjan, learned Judicial Magistrate, 1st Class, Bokaro. Further complainant was aware of the contents of the said case filed by Naresh Kumar Jani and had given his evidence in the said case, in which, cognizance of the offence had been taken by the learned court below. Further complainant was aware of the contents of the said case filed by Naresh Kumar Jani and had given his evidence in the said case, in which, cognizance of the offence had been taken by the learned court below. It is further alleged that on 25.08.2014, the petitioners had moved the learned court below for grant of bail in the above mentioned case filed by the Naresh Kumar Jani and the learned court below had been pleased to grant bail in the said case on that day. It is further stated that incidentally complainant had gone to Chas for taking some goods wherein he met Naresh Kumar Jani who took the complainant to Bokaro civil court. Further that on 25.08.2014 at about 5 P.M. when the complainant was going via circuit house, the accused persons stopped the complainant near the circuit house and accused No. 1 started to abuse the complainant and threatened him. Further the complainant asked the accused persons to refrain however the accused No. 1 started hitting the complainant and accused No. 2 started instigating and asked accused no. 1 to kill the complainant. On instigation from accused No. 2, it alleged that accused No. 1 attached the complainant with knife and complainant suffered injuries as a result thereof. Further it is stated that as other witnesses gathered, life of the complainant was saved. However, in the meantime accused No. 2 snatched Rs. 18,000/- from the packet of the complainant and threatened him also. Cr. M.P. No. 2607 of 2014 6. This criminal miscellaneous petition has been filed for quashing of the order dated 27.05.2014, passed by the learned Judicial Magistrate, 1st Class, Bokaro as well as the entire criminal proceedings, in connection with C.P. Case No. 1275 of 2013, whereby cognizance has been taken against the petitioners for the offences under Sections 341, 323 and 504 of the Indian Penal Code, pending in the Court of learned Judicial Magistrate, 1st Class, Bokaro. 7. The complaint case was filed, stating therein that about 30 years ago he made an investment of about 95,000/- and started the business of Anil Automobiles on the land allotted to Vinay S. Shah by B.S.L. on lease, as per oral agreement between the parties. Further as per the agreement, it has been alleged that the complainant used to pay 10% of the profit to Vinay Shah. Further as per the agreement, it has been alleged that the complainant used to pay 10% of the profit to Vinay Shah. Further in 1973 Vinay Shah shifted to Mumbai but it is alleged that he assured the complainant that he will transfer the lease in the name of complainant in future. Further on 10.03.1998, Vinay filed an application for transfer of the lease in the name of the complainant for which he had given Rs. 7,50,000 to the petitioner No 1. However as Vinay did not produce the original lease papers the transfer could not take place. Further it is alleged that in 2009 he paid an amount of Rs. 2,64,000/- to B.S.L. for lease renewal and informed this to petitioner no 1. Further on 26.02.2013 Vinay came to Bokaro and received the lease extension papers from B.S.L. It is alleged that on 27.02.2013 Vinay along with his son Umang and one Shri Chandra Prasad came to the complainant abused him and asked him to vacate the land. Further it is alleged that Vinay told him that he is going to transfer the lease in the name of Shri Chandra Prasad and assaulted the complainant. On 08.04.2013 Vinay and his son Umang came to the complainant and demanded an amount of 50,00,000/- for transfer of the lease in his name. Further it is alleged that again on 09.04.2013 Umang armed with a pistol and Shri Chandra Prasad armed with a knife came to the complainant and told him to vacate the land and also threatened him to pay an amount of Rs. 5,00,000/- and also to pay Rs. 50,000/- per month as Rangdari. Further it is alleged that Umang snatched away a gold chain worth Rs. 30,000/- and Chandra Prasad took out a purse containing a cash of Rs. 15,000/- from the complainant. 8. It is pertinent to mention here that the complainant-O.P. No. 2 in Cr. M.P. No. 60 of 2016 was the witness in the Complaint Case No. 1275 of 2013, which was filed against the petitioners, alleging therein that the petitioners have threatened the O.P. No. 2. In Cr. M.P. No. 2607 of 2014, the petitioners have challenged the cognizance order, which has been passed after the final form, submitted by the police. 9. Mr. In Cr. M.P. No. 2607 of 2014, the petitioners have challenged the cognizance order, which has been passed after the final form, submitted by the police. 9. Mr. Nilesh Kumar, learned counsel appearing in both the cases submits that C.P. Case No. 1275 of 2013 was referred to the police by the learned court under Section 156(3) Cr.P.C. and, accordingly, the FIR, being Sector-IV P.S. Case No. 54 of 2013 under Sections 341, 323, 385, 387, 452, 380, 406, 420/34 of the Indian Penal Code was registered against the petitioners. He submits that the police investigated the case and submitted the final form, wherein the petitioners have not been sent up for trial submitting therein that the ingredients of those Sections were found not true. He further submits that on the protest petition, the learned court has taken cognizance against the petitioners. He further submits that the petitioner Nos. 1 and 2 are the residents of Mumbai and the petitioner No. 3 is the resident of Bokaro. He also submits that the learned court in the order taking cognizance has found that the petitioners are the full owners of the said piece of land and there is no dispute regarding the same. He further submits that the learned court has not found ingredients of other Sections, except Sections 341, 323 and 504 IPC. He also submits that one civil case with regard to property in question is the subject matter of Title Suit No. 87 of 2013, which has been decreed in favour of the petitioners. He further submits that the said title suit has also been taken note by the police. He also submits that one civil case with regard to property in question is the subject matter of Title Suit No. 87 of 2013, which has been decreed in favour of the petitioners. He further submits that the said title suit has also been taken note by the police. He further submits that again a complaint was filed against the petitioners before the Sector-IV police station, which was registered as Sector-IV P.S. Case No. 144 of 2017 dated 17.12.2017 for the offences under Sections 448, 380, 387/34 of the IPC, the said documents has been brought on record by way of filing the supplementary affidavit at Annexure-C. By way of referring these documents, he further submits that the police investigated the matter and reported before the learned court that for the same offence, one FIR was earlier registered under Section 156(3) Cr.P.C. wherein the final form has been submitted and for the same offence, again this FIR has been lodged against the petitioners, who are residents of Mumbai and Bokaro and the recommendation has been made by the police officer to initiate a proceeding under Sections 182/211 IPC against the O.P. No. 2, as they are abusing the process of law. 10. On these grounds, learned counsel appearing for the petitioners submits that both these cases are fit cases to quash the criminal proceedings. 11. On the other hand, Mr. A.K. Choudhary, learned counsel appearing for the O.P. No. 2 in Cr. M.P. No. 2607 of 2014 submits that the learned court has taken care of in passing the cognizance order and it is well reasoned order and this Court may not interfere under Section 482 Cr.P.C. He submits that the enquiry witnesses have been considered and thereafter cognizance order has been passed. He further submits that it is well settled that the High Court at the initial stage has not to quash the proceeding under Section 482 Cr.P.C. Mr. A.K. Choudhary, learned counsel appearing for the O.P. No. 2 in Cr. M.P. No. 2607 of 2014, upon instructions, submits that the title suit has been decreed in favour of the petitioners and the O.P. No. 2 is going to file the appeal against the said decree, which is under process. 12. The grounds of Cr. M.P. No. 60 of 2016 has been advanced by Mr. M.P. No. 2607 of 2014, upon instructions, submits that the title suit has been decreed in favour of the petitioners and the O.P. No. 2 is going to file the appeal against the said decree, which is under process. 12. The grounds of Cr. M.P. No. 60 of 2016 has been advanced by Mr. Nilesh Kumar, learned counsel appearing for the petitioners for quashing the entire criminal prosecution submitting that the O.P. No. 2 of this case was examined as enquiry witness in the complaint, which is the subject matter of Cr. M.P. No. 2607 of 2014 and he has filed a false case against the petitioners, who are the residents of Mumbai and Bokaro. He submits that since the police has already investigated the entire matter and submitted a final form with regard to C.P. Case No. 1275 of 2013, which was referred to the police by the learned court under Section 156(3) Cr.P.C. and accordingly, the FIR, being Sector-IV P.S. Case No. 54 of 2013 under Sections 341, 323, 385, 387, 452, 380, 406, 420/34 of the Indian Penal Code, there is no occasion to file this complaint against the petitioners and this is malicious action against the petitioners. He submits that the petitioner No. 2 is aged about 78 years and it is not possible for such an old person to make the assault upon the O.P. No. 2, as alleged in the complaint. He further submits that the cognizance order is cryptic order, as no reason has been assigned as to what are the materials against the petitioners to proceed against them. On these grounds, he submits that the case is maliciously and malafidely filed, as such this court is competent to quash the entire criminal proceeding under Section 482 Cr.P.C. 13. Mr. Onkar Nath Tiwary, learned counsel appearing for the O.P. No. 2 in Cr. M.P. No. 60 of 2016 submits that prima facie case is made out against the petitioners and it is well settled that the High Court is required to exercise its power under Section 482 Cr.P.C. sparingly and with caution. He relied in the case of Ramveer Upadhyay and Another vs. State of U.P. and Another in Special Leave Petition (Crl.) No. 2953 of 2022. He relied in the case of Ramveer Upadhyay and Another vs. State of U.P. and Another in Special Leave Petition (Crl.) No. 2953 of 2022. He submits that in this case the Hon’ble Supreme Court has considered almost all the leading judgments on the point of Section 482 Cr.P.C. and held in Para-34 as under: “34. In Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre, a three-Judge Bench of this Court summarized the law with regard to quashing of criminal proceedings under Section 482 of the Cr.P.C. This Court held: “The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” 14. Relying on this judgment, he submits that this Court comes to the conclusion that no case is made out and this petition is fit to be dismissed. 15. In view of the above facts and considering the submissions of learned counsel appearing for the parties, the Court has gone through the materials available on record in both the cases. It is an admitted fact that earlier the case has been lodged against the petitioners in the year 2013, which was registered as C.P. Case No. 1275 of 2013 and the same was referred to the police by the learned court under Section 156(3) Cr.P.C. and accordingly, the FIR, being Sector-IV P.S. Case No. 54 of 2013 under Sections 341, 323, 385, 387, 452, 380, 406, 420/34 of the Indian Penal Code and the same was investigated and the police submitted the final form, wherein the petitioners were not sent up for trial. The police has also found that the title suit filed for the same land in question has been decreed in favour of the petitioners, which was numbered as Title Suit No. 87 of 2013. It is also an admitted fact that after the final form submitted by the police in the case, the O.P. No. 2 again filed the criminal case, bearing Sector-IV P.S. Case No. 144 of 2017 dated 17.12.2017 for the offences under Sections 448, 380, 387/34 of the IPC, which is contained in Annexure-C to the supplementary affidavit filed on behalf of the petitioners. In this report, the police reported that the Petitioner No. 1 is the owner of the land in question and for that earlier one complaint case was filed, bearing C.P. Case No. 1275 of 2013 and the police recommended before the Court to initiate a proceeding against the O.P. No. 2 under Sections 182 and 211 of IPC, as by way of filing repeated complaint against the petitioners, they are abusing the process of law. 16. In the order taking cognizance in Cr. M.P. No. 2607 of 2014 on the protest petition, the learned Court has also observed that the accused/petitioners are the rightful owners of the said piece of land and there is no dispute regarding the same. The police has also reported in the subsequent complaint, filed by the police that since 2012 nobody is residing in the premises in question. The learned court while taking cognizance in complaint case No. 1275 of 2013 has held that version of enquiry witnesses are not only sufficient in this regard, but also the same are contradictory too and hence no prima facie case is made out against anyone under Sections 380, 385, 387, 506, 467, 468 IPC. The learned court, however, came to the conclusion that the complainant alone is quite sufficient to make out a prima facie case under Section 341, 323 and 504 IPC against all the three accused, named in the complaint petition and the version of the enquiry witnesses too are quite corroborative to that extent. It is an admitted fact that for the same land in question, the title suit has already been decreed in favour of the petitioners. 17. It is an admitted fact that for the same land in question, the title suit has already been decreed in favour of the petitioners. 17. In view of the materials available on record and considering that for the same land in question, the title suit has been decreed in favour of the petitioners and the O.P. No. 2 is in process of filing the appeal, it appears that the police report on the factual ground is correct and this is a case arising out of a civil dispute, for that criminal colour has been put against the petitioners. It is not in dispute that civil case and the criminal case may go on simultaneously, if there are ingredients of criminal proceedings. The case in hand, on the protest petition, the leaned court has taken the cognizance in so many words, but while passing the cognizance order the Court has held that the witnesses have stated contradictory and the petitioners are the rightful owner of the land in question, in spite of that cognizance has been taken against the petitioners, which amounts to an abuse of the process of law. 18. In Cr. M.P. No. 60 of 2016, the O.P. No. 2 is the enquiry witness with regard to C.P. Case No. 1275 of 2013, which is the subject matter of Cr. M.P. No. 2607 of 2014. O.P. No. 2 in Cr. M.P. No. 60 of 2016 has alleged of assaulting and threatening by the petitioners. The police has already submitted a final form with regard to Complaint Case No. 1275 of 2013, which was subsequently registered as FIR earlier and this case has been filed later on in the year 2015. The petitioners are the residents of Mumbai and Bokaro. The learned court while passing the cognizance order dated 30.03.2015 has not observed what are the prima facie materials against the petitioners and what the enquiry witnesses have disclosed against the petitioners. To summon a person in a criminal case is a very serious matter, which requires to be looked into very cautiously. The order should not be mechanical. Magistrate has to mention at least that there are sufficient materials to proceed against the persons and what are the prima facie materials to proceed against them. He need not pass a detail judgment evaluating the materials, which are before him. The order should not be mechanical. Magistrate has to mention at least that there are sufficient materials to proceed against the persons and what are the prima facie materials to proceed against them. He need not pass a detail judgment evaluating the materials, which are before him. The detail reasons as to why he is taking cognizance or issuing process are not to be mentioned but at least what are the bare minimum prima-facie materials against the accused/petitioners should be mentioned in the order issuing summon. Reference may be made to the case of Pepsi Food Limited and Another vs. Special Judicial Magistrate and Others, (1998) 5 SCC 749 wherein the Hon’ble Supreme Court in Para-28 has observed as follows: “28. 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. It is not that the magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any f the accused.” 19. In a case where the police has not investigated the matter, it was incumbent upon the learned court to a person, who is being summoned to look into Section 202 Cr.P.C. Section 202 Cr.P.C. was amended in the year 2005 with effect from 22.06.2006 by adding the words after the “and shall, in a case where the accused is residing at a place beyond the area in which he exercises. This amendment has been captured by the Hon’ble Supreme Court in the case of Vijay Dhanuka vs. Najima Mamtaj, (2014) 4 SCC 638, wherein the Hon’ble Supreme Court in Paras-11 and 12 held as follows: “11. Section 202 of the Code, inter-alia, contemplates postponement of the issue of the process “in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not. 12. The words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23.6.2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows: “False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.” The use of the expression “shall” prima-facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression “shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.” 20. The expression of the word ‘shall’ has been considered by the Hon’ble Supreme Court and held that the inquiry or the investigation is mandatory before summoning an accused, who is living beyond the territorial jurisdiction of the Magistrate. 21. So far as the judgment relied upon by Tiwari in the case of Ramveer Upadhyay and Another (Supra) is concerned, that is not in dispute. It is well settled that the High Court is required to go slowly for quashing of any criminal proceeding, which is at the initial stage. In that case the Hon’ble Supreme Court has considered the cases pending against the legislators, which is at Para-14 of the said judgment. The complaint was serious in nature, wherein the allegation of life threat has been made, the learned Sessions Judge has taken the cognizance, however, the High Court has quashed the entire criminal proceedings under Section 482 Cr.P.C. On these premises, the Hon’ble Supreme Court has quashed the proceeding in the case of Ramveer Upadhyay and Another (Supra) and the fact of the cases in hand are different and the scope with regard to Section 482 Cr.P.C. is not in dispute. However, at the same time, the Court comes to the conclusion that these are maliciously filed and this is an abuse of the process of law, the Court is required to exercise its power under Section 482 Cr.P.C. If the Court comes to a conclusion that there is no such indication where the learned court proceed under Sections 192 Cr.P.C. the High Court under Section 482 Cr.P.C. is bound to interfere in its inherent power in order to prevent the abuse of the process of law. To call a person before the criminal court is a serious matter affecting ones self-respect and dignity in society and the court will not allow to process of criminal court is a weapon of harassment to such person. 22. In view of the above facts, submissions as well as the reasons and analysis, these petitions succeed. 23. Accordingly, the order dated 27.05.2014, passed by the learned Judicial Magistrate, 1st Class, Bokaro as well as the entire criminal proceedings, in connection with C.P. Case No. 1275 of 2013, whereby cognizance has been taken against the petitioners for the offences under Sections 341, 323 and 504 of the Indian Penal Code, pending in the Court of learned Judicial Magistrate, 1st Class, Bokaro [in Cr. M.P. No. 2607 of 2014] and the order dated 30.03.2015, passed by the learned Judicial Magistrate, 1st Class, Bokaro as well as the entire criminal proceedings, in connection with C-1 C.P. Case No. 569 of 2014, whereby cognizance has been taken against the petitioners for the offences under Sections 323, 341, 324 and 379 of the Indian Penal Code, pending in the Court of learned Judicial Magistrate, 1st Class, Bokaro [in Cr. M.P. No. 60 of 2016], are hereby, quashed and set aside. 24. Both these criminal miscellaneous petitions are allowed and disposed of.