Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 309 (JHR)

Khalil Ansari v. State of Jharkhand

2023-03-14

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Amarendra Kumar, learned counsel for the petitioners, Mrs. Shweta Singh, learned A.P.P. for the State and Mr. Anil Kumar Sinha, learned counsel for opposite party no. 2. 2. This petition has been filed for quashing the entire criminal proceeding including the order taking cognizance dated 07.08.2012 passed in Complaint Case No. 521 of 2012, pending in the court of the learned Civil Judge (Senior Division) cum Chief Judicial Magistrate, Koderma. 3. Initially Koderma (S.C. & S.T.) P.S. Case No. 22 of 2011, corresponding to G.R. Case No. 704 of 2011 was instituted on the basis of the information received from opposite party no. 2 under Sections 341, 323, 448, 504/34 of the Indian Penal Code and under Sections 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. After institution of the aforesaid FIR, investigation was conducted by the Investigating Officer who submitted final form on 30.09.2011 showing false accusation. Against the aforesaid final form, the complainant/opposite party no. 2 filed a protest petition which was converted into Complaint Case No. 521 of 2012 and the learned Chief Judicial Magistrate, Koderma took cognizance under Sections 341, 323, 448 of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. 4. Mr. Amarendra Kumar, learned counsel appearing for the petitioners submits that opposite party no. 2 has initially lodged Koderma (S.C. & S.T.) P.S. Case No. 22 of 2011 against the petitioners, in which the Investigating Officer after conducting the investigation, has submitted final form showing false accusation, against which the opposite party no. 2 filed protest petition in which cognizance has been taken against the petitioners. 2 has initially lodged Koderma (S.C. & S.T.) P.S. Case No. 22 of 2011 against the petitioners, in which the Investigating Officer after conducting the investigation, has submitted final form showing false accusation, against which the opposite party no. 2 filed protest petition in which cognizance has been taken against the petitioners. He further submits that the complainant has previously filed complaint case being No. 1397 of 2010 (T.R. Case No. 1220 of 2011) against the petitioners with similar accusation in which on 20.06.2011, the learned court after considering the statement of the complainant recorded on solemn affirmation and the statement of four enquiry witnesses found prima facie case under Sections 147, 323 and 504 of the Indian Penal Code and the learned court was of the opinion that the material available on record were not sufficient and cogent enough to make out a prima facie case against the petitioners under the provision of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and in that case cognizance was not taken under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and that is why the present case has been filed and the learned court has taken cognizance under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 that too on the protest petition. He also submits that in both the complaint cases, it has come that there is some dispute between the parties with regard to passage of land in question and for that the case has been lodged. On these grounds, he submits that this is a malicious prosecution against the petitioners and in that view of the matter, entire criminal proceeding may be quashed. 5. On the other hand, Mr. Anil Kumar Sinha, learned counsel for opposite party no. 2 submits that there are allegations against the petitioners and the learned court after considering the solemn affirmation and the statement of four enquiry witnesses, has taken cognizance against the petitioners and in that view of the matter, even if the final form is in favour of the petitioners, on the protest petition, cognizance has been taken against the petitioners. He further submits that there is no illegality in the order taking cognizance and this petition is fit to be dismissed. 6. Mrs. He further submits that there is no illegality in the order taking cognizance and this petition is fit to be dismissed. 6. Mrs. Shweta Singh, learned A.P.P. appearing for the State submits that the learned court has taken cognizance on the protest petition filed by opposite party no. 2. 7. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record and finds that admittedly earlier complaint case numbered as Complaint Case No. 1397 of 2010 was filed by opposite party no. 2. The averments in the said complaint case was that the date of occurrence was 01.08.2010 and the subject matter of the present case are almost similar. There are allegations of obstruction of passage between the parties and for that earlier also the complaint case was filed, as has been submitted by the learned counsel appearing for the petitioners and in that complaint case, cognizance has not been taken under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against the petitioners. Admittedly, there is dispute with regard to passage of land and if such situation is there, the provision of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is not attracted, as has been held by the Hon'ble Supreme Court in Hitesh Verma vs. State of Uttarakhand, (2020) 10 SCC 710 . Paragraphs 12, 13, 14, 18 and 22 of the said judgment are quoted herein-below: “12. The basic ingredients of the offence under Section 3(1) (r) of the Act can be classified as “(1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (2) in any place within public view.” 13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. 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. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. 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. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that Respondent 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that Respondent 2 is a member of Scheduled Caste. 14. Another key ingredient of the provision is insult or intimidation in “any place within public view.” What is to be regarded as “place in public view” had come up for consideration before this Court in the judgment reported as Swaran Singh v. State. The Court had drawn distinction between the expression “public place” and “in any place within public view.” It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under: “28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a “chamar”) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place.” A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.” (Emphasis in original) 18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out. 22. The appellant had sought quashing of the charge-sheet on the ground that the allegation does not make out an offence under the Act against the appellant merely because Respondent 2 was a Scheduled Caste since the property dispute was not on account of the fact that Respondent 2 was a Scheduled Caste. The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. Still further, the finding that the appellant was aware of the caste of the informant is wholly inconsequential as the knowledge does not bar any person to protect his rights by way of a procedure established by law.” 8. Moreover, for making out a case under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, public view is one of the ingredients, which is also lacking in the case in hand. There is malicious prosecution against the petitioners and allow to continue the same will amount to abuse of the process of law. 9. In view of the above facts, reasons and analysis, the entire criminal proceeding including the order taking cognizance dated 07.08.2012 passed in Complaint Case No. 521 of 2012, pending in the court of the learned Civil Judge (Senior Division) cum Chief Judicial Magistrate, Koderma is, hereby, quashed 10. Accordingly, this petition stands allowed and disposed of. 11. Interim order, if any granted by this Court, stands vacated.