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2023 DIGILAW 242 (JHR)

Dharmendra Rai v. State of Jharkhand

2023-02-27

GAUTAM KUMAR CHOUDHARY

body2023
JUDGMENT : Instant petition has been filed for quashing the entire criminal proceeding including the order taking cognizance dated 18.03.2020 in connection with C.P. Case No.3708 of 2019 for the offence under Sections 323, 506 of the I.P.C. and Sections 3(1) (x) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter called ‘SC/ST (PA) Act’) pending in the Court of learned Special Judge, SC/ST, Dhanbad. 2. It is submitted by learned counsel on behalf of the petitioners that the petitioners are President and Secretary of BCCL Employees’ Cooperative Credit Society, Dhanbad and the complainant was a member of the association. On 09.10.2018 vide reference No.427 (Annexure-3), the complainant was removed from the membership of the society. Further, the complainant had earlier filed one Jorapokhar P.S. Case No.56 of 2016 under Sections 344, 323, 379, 504, 506, 34 of the I.P.C. in which after investigation, the case was found as not true and final form was submitted on 28.06.2016. No protest petition has been filed and it has attained finality. The informant had submitted a petition before the Court of Assistant Registrar, Cooperative Society, Dhanbad petitioner No.2-. Umashankar Sahi for being removed from the office of the society. The petition was rejected by the Assistant Registrar vide order dated 22.06.2020. It is against this background only to wreck vengeance against this petitioner, the present case has been filed with the allegation that on 09.03.2016 at 2.00 p.m., he was abused and assaulted and derogatory remarks were made calling his caste name. The incidence is said to be taken place on 09.03.2016 and 22.11.2019. As stated earlier, the incidence of 09.03.2016 has already been falsified in the final report submitted by the police and the present complaint has been filed six days after the incidence without any compliance for not informing police or the delay in filing instant petition. 3. Reliance has been placed on (i) Gorige Pentaiah Versus State of Andhra Pradesh; (2008) 12 SCC 531 (ii) Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710 wherein it has been held that all insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. 4. Learned A.P.P. assisted by learned counsel on behalf of opposite party No.2 has opposed the quashing petition. 4. Learned A.P.P. assisted by learned counsel on behalf of opposite party No.2 has opposed the quashing petition. It is submitted that the petitioners were aggrieved by this informant for the reason that he had filed the petition before Assistant Registrar, Cooperative Society for their removal and on account of this, the informant was abused and assaulted in public view. It is further submitted that two witnesses have supported the case in enquiry. 5. I find much force in the argument advanced on behalf of the petitioners that that a trade union dispute has been given the colour of SC/ST case and the instant petition has been filed without following the Rule 5 of SC/ST Rule, 1995. 6. Petitioners are the president and secretary of the said union and the informant was the member who has been removed from its membership. Earlier Jorapokhar P.S. Case No.56 of 2016 was filed for I.P.C offences in which after investigation, the case was found as not true and final form was submitted on 28.06.2016. The informant without success had submitted a petition before the Court of Assistant Registrar, Cooperative Society, Dhanbad for being removed petitioner No.2-. Umashankar Sahi from the office of the society. In place of a FIR, a private complaint has been after six days of the incidence without any cogent explanation for the delay. 7. Against the above fact situation, there cannot be a shred of doubt that the incidence of assault, if any, that took place on the said date and time of the incidence was not on account of the accused being members of Scheduled Caste, but due to past union rivalry. The very purpose of enquiry will be rendered otiose, if criminal prosecution is launched under stringent provisions of the SC/ST (PA) Act on the basis of private complaint supported by the statement of some interested. It was for this reason that Hon’ble the Supreme Court observed in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 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. 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 scrutinise 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 of the accused. State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 Hon’ble Supreme Court observed that the wholesome power under Section 482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. 8. This Court is of the considered view against the aforesaid facts and circumstance of the case, that the allegations made in the complaint is inherently improbable to make out offence under SC/ST (PA) Act accordingly, the cognizance under Sections 3(1) (x) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is quashed. Criminal Miscellaneous Petition is partly allowed.