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2024 DIGILAW 1028 (JHR)

Bijay Kumar @ Vijay Kumar v. State of Jharkhand

2024-12-11

SANJAY KUMAR DWIVEDI

body2024
JUDGMENT : Sanjay Kumar Dwivedi, J. Heard the learned counsel appearing on behalf of the petitioner, as well as the learned counsel for the respondent State and the learned counsel appearing on behalf of the respondent no.2. 2. This petition has been filed for quashing of the entire criminal proceeding including the First Information Report (FIR) being S.T./S.C. Dhanbad Case No.03 of 2024 dated 11.7.2024 registered for the offence under sections 354, 354-B, 504, 509 of the Indian Penal Code and sections 3(1)(r), 3(1)(w) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, pending in the court of learned Additional Sessions Judge-I, Dhanbad. 3. The First Information Report the prosecution case levels allegations against the petitioner under Section 354/354-B/504/509 of the Indian Penal Code and Section 3(1)(r)/ 3(1)(w) of the S.T./ S.C. Atrocities Act, on the basis of information submitted by one Shalo Devi, consequent to which the FIR has been registered by the officer in charge, police station, being S.T./S.C. P.S. Dhanbad Case No.03 of 2024, dated 11.07.2024. The date of occurrence has been provided in the FIR format as to be from 03.05.2021 to 03.05.2021. The place of occurrence has been described as to be the office of M/s BCCL, Ke Area-9, P.S.-Dhansar, Dhanbad. The petitioner has been named as accused in the FIR. The reason for delay in filing of the FIR has not been explained in the column at Sl. No.8 is blank. The content of the FIR is based on the information supplied by the lady, named as Shalo Devi, widow of Late Upendra Kumar. In the application submitted by the said lady, dated 11.07.2024 before the office in charge, SC/ST P.S. Dhanbad, it has been stated that the lady is widow of late Upendra Kumar and she is 25 years old, and belongs to SC category (Musahar Caste), and is resident of Sahana Pahadi Harijan Tola, near Shiv Mandir, P.O. & P.S.-Jharia, District-Dhanbad (Jharkhand). She has stated that she belongs to Musahar caste, which is categorized as scheduled caste. She has stated that her husband, namely Upendra Bhuinya died on 24.05.2021, and he was employee of M/s BCCL, Area-9, working as General Majdoor. On account of his death, she had approached the related department for grant of appointment on compassionate basis. She has stated that she belongs to Musahar caste, which is categorized as scheduled caste. She has stated that her husband, namely Upendra Bhuinya died on 24.05.2021, and he was employee of M/s BCCL, Area-9, working as General Majdoor. On account of his death, she had approached the related department for grant of appointment on compassionate basis. All the necessary documents had been submitted, but the petitioner, who was then posted in the related Department, had invited the lady on several occasions in relation to work, but alone, on 03.05.2021 at 3:00 P.M. mid-day. She further said that the petitioner enticed the lady to do all the works as told by the petitioner, without giving a thought, and then he would prefer to forward the application of compassionate appointment of the lady before the competent authority. It has been alleged that the petitioner tried to hold the hand of the lady and further invited her to sleep together. It is also alleged that he also tried to disrobe her. The lady opposed such an action, on which he intimidated her and called her by the name of her caste and abused her. In the meantime, her brother Ravindra Prasad, son of Late Rameshwar Bhuinya, came into the office and heard and saw all the actions of the petitioner. The petitioner got embarrassed and ashamed and left the office. Thereafter, the petitioner had called the lady on several occasions at night, without any purpose and gave false assurances. He further used to invite the lady. It is alleged that the petitioner used to use slangs over the phone, and would demean her, by calling out the case of Musahar, to which she belonged. Further, it has been alleged that the relief of compassionate appointment, being pursued by the lady got delayed because of the petitioner. She did not receive the due arrears, pending to be paid, against the service of her husband, which was kept unpaid. It has also been alleged that false letters are being promoted to be written against the lady on the instigation of the petitioner. The lady has suffered mental, physical, economic harassment. On these allegations, the FIR was prayed to be lodged. 4. Mr. Saurabh Shekhar, the learned counsel appearing on behalf of the petitioner submits that the petitioner is working as Clerk in the office of B.C.C.L and posted at Dobari Colliery, Area No.9. The lady has suffered mental, physical, economic harassment. On these allegations, the FIR was prayed to be lodged. 4. Mr. Saurabh Shekhar, the learned counsel appearing on behalf of the petitioner submits that the petitioner is working as Clerk in the office of B.C.C.L and posted at Dobari Colliery, Area No.9. He further submits that it has been alleged in the FIR that the lady has approached the office of M/s BCCL for the purpose of getting employment on compassionate ground on death of her husband and in the FIR it has been disclosed that in the certificate the death is of 24.5.2021. He also submits that the application for compassionate appointment was moved on 3.5.2021 that is prior to death of the husband of the informant. He then submits that what has been stated with regard to the ingredients of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is also malicious in view of the fact that caste name of the petitioner has not been disclosed and what has happened has not happened in the public view. He submits that even even if the talk was on the telephone, it was further not in public view and he further submits that so far as not taking the caste name of the petitioner is concerned that was considered by the Hon’ble Supreme Court in the Case of Gorige Pentaiah v. State of Andhra Pradesh and Others, (2008) 12 SCC 531 . 5. Mr. Saurabh Shekhar, the learned counsel then submits that interim order was provided by this Court on 11.9.2024 by way of a reasoned order and thereafter the re-instatement of the informant was taken, and in the counter affidavit filed by the respondent no.2 the date of occurrence is improved by way of saying that it has occurred on 3.5.2022 and the re-instatement was taken on 21.10.2022. He further submits that if this fact is there, then the case of the petitioner is covered in light of the judgment of Hon’ble Supreme Court in case of State of Haryana and Others v. Bhajanlal and Others, 1992 Supp.(1) SCC 335, particularly, the direction no.5 of the paragraph no.102 of the said judgment. He submits that the facts are highly improbable and in view of that if malicious prosecution is allowed to be continued it will be an abuse of process of law. He submits that the facts are highly improbable and in view of that if malicious prosecution is allowed to be continued it will be an abuse of process of law. On this ground, he submits that the entire criminal proceeding may kindly be quashed. 6. Mr. Chandra the learned counsel appearing on behalf of the respondent State submits that this is only the FIR and investigation is going on and at this stage this Court may not interfere. 7. Mr. Pratyush Lala, the learned counsel for the respondent no.2 vehemently opposed the prayer and submits that there is error in recording of the death and in view of that, the FIR is not fatal. He submits that the FIR is not an encyclopedia and only in the investigation the things will come and on this ground he submits that the allegations are there of sexual harassment against the petitioner and in view of that the entire FIR may not be quashed at this State and the entire argument can be the subject matter in trial. He refers to section 362 of the Cr.P.C and submits that the Court is competent to rectify the dates. On this ground, he submits that the entire criminal proceeding may not be quashed. 8. In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the contents of the FIR. Admittedly, in the FIR, the date of death of husband of the informant is said to be 24.5.2021 and certificate on record is also on that effect. However, with regard to the compassionate appointment the allegation is made that it has happened on 03.05.2021, the question remains that when the death is not occurred on that date, where the question of processing of the application on compassionate appointment. Further with regard to the ingredient of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 the caste name of the petitioner has not been taken by the informant, and if such a situation is there, then the case of the petitioner is covered in light of the judgment of Hon’ ble Supreme Court in the case of Gorige Pentaiah v. State of Andhra Pradesh and Others (supra) wherein at paragraph no.6 of the said judgment, it has been held as under: “6. In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27-5-2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.” 9. Thus, the ingredients of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is absent. In the counter affidavit filed by the respondent no.2 wherein at paragraph no.5 it has been stated as under: “That at the outset informant is stating that in the written report due to inadvertence dated of occurrence is stated as 03.05.2021 instead of 03.05.2024 which is the actual date of offence. The statement of victim girl was recorded under section 161 of Cr.P.C on 21.10.2024 in which victim girl has supported the entire occurrence and stated that date of occurrence is 21.10.2024” 10. In view of above it is crystal clear that the interim order passed by this Court on 11.9.2024 recording the date of occurrence and thereafter this statement has been taken by way of saying that it has occurred on 03.05.2021 and further it is stated that the occurrence is said to be of 21.10.2024. In the said paragraph two dates are coming of occurrence. 11. In the counter affidavit filed by the respondent State in paragraph no.13, the date of occurrence is further said to be 03.05.2024. It further creates doubt that the death has occurred on 24.05.2021 wherein in the improved date, the occurrence is said to be 03.05.2024 and there is gap of three years. 11. In the counter affidavit filed by the respondent State in paragraph no.13, the date of occurrence is further said to be 03.05.2024. It further creates doubt that the death has occurred on 24.05.2021 wherein in the improved date, the occurrence is said to be 03.05.2024 and there is gap of three years. Now the compassionate appointment applications are being considered expeditiously and every possibility is there that if it is processed it must be on the last hierarchy to be considered. 12. There is no doubt that the Court is required to pass the order with circumspection as has been held in several judgments of Hon’ble Supreme Court and it is well settled provision of law however at the same time if malicious prosecution is there and if it is allowed to be continued, the High Court will slack of its responsibility. 13. Even if the First Information Report, which cannot be treated as an encyclopaedia, contains only certain facts, which could genuinely lead to a reasonable belief that a cognizable offence had been committed, the High Court must be slow in exercising its inherent powers to quash the first information report and stifle the investigation. In other words, even if the first information report does not come within the ambit straightway of a cognizable offence, if the material collected subsequently disclose the commission of a cognizable offence, the police cannot be halted in their tracks. If the first information report does not disclose a cognizable offence the Court shall exercise its jurisdiction, once it is satisfied that even when challenged the investigating agency, on the basis of all the material collected, was unable to show any reasonable suspicion of the commission of cognizable offence, and a patent harassment of the accused was obvious amounting to clear abuse of power by the police. The salutary inherent power will then have to be necessarily exercised, as otherwise the contemplation to secure the ends of justice in Section 482, CrPC and under Article 226 of the Constitution of India, would became a dead letter. 14. If such allegation is brought to the knowledge of the Court the High Court is having more responsibility to examine the things more closely so that any innocent person may not be put on trial. 14. If such allegation is brought to the knowledge of the Court the High Court is having more responsibility to examine the things more closely so that any innocent person may not be put on trial. This aspect of the matter has recently be considered by the Hon’ble Supreme Court in the case of “Haji Iqbal @ Bala through S.P.O.A. Vs. State of U.P. and Others“ (2023) SCC Online 946 wherein in para 15 it has been held as under:- “15. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.” 15. In view of above judgment, it is well settled that if the case is brought into the notice of the High court the High Court is further required to look into the facts and reasons and read the allegation in between lines. It is well known that if a malicious prosecution is tried to be made out the contents of the FIR or the complaint are so drafted that the ingredients of that section may be made out. 16. To put criminal law in motion by examining witnesses is also deprecated by the Hon’ble Supreme Court in the case of ‘Pepsi Foods Ltd. V. Special Judicial Magistrate’ (1998) 5 SCC 749 . The SC/ST Act is meant for protection of schedule castes and schedule tribes and it is not meant for setting the score by way of filing the false case. 17. What has been discussed herein above, the case of the petitioner is covered in light of the direction no.5 at paragraph no.102 in the case of State of Haryana and Others v. Bhajanlal and Others(supra) which is given below: “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. (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.” 18. As such, the entire criminal proceeding in connection with S.T./S.C. Dhanbad P.S. Case No.03 of 2024 dated 11.7.2024, pending in the court of learned Additional Sessions Judge-I, Dhanbad are quashed. 19. This petition is allowed and disposed of. 20. Pending petition if any also stands disposed of accordingly.