The High Court
Case Details
THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 824 of 2018 Prabhash Kumar @ Prabhash Sharma 1. The State of Jharkhand 2. Smt. Anuradha Choudhury ------ Versus -------- … ... Petitioner … … Opposite Parties
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE NAVNEET KUMAR For the Petitioner For the State For O.P. No. 2 -------- : Mr. Praveen Shankar Dayal, Advocate : Mr. Rajneesh Vardhan, Advocate : Mr. Raunak Sahay, Advocate -------- Order No. 06 / Dated: 18th January, 2023 Heard, learned counsel for the petitioner and learned counsel for the State as also learned counsel for opposite party No.2. Learned counsel appearing on behalf of the petitioner submitted that the complainant-opposite party No. 2 on earlier occasion had lodged the case vide Mango P.S. Case No. 317 of 2016, corresponding to G.R. No. 2526 of 2016, under Sections 406, 420, 341, 354, 504 and 34 of the Indian Penal Code against the six named accused persons in which the petitioner Prabhash Kumar @ Prabhash Sharma was one of them and the police after investigation submitted the final report absolving the petitioner from all the charges levelled against him for the lack of evidence. Further it has been pointed out that the complainant-opposite party No. 2 on the submission of the final report filed protest petition which was registered as Complaint Case No. 574 of 2017 and the enquiry of the complaint case commenced and after enquiry the learned Court below passed the impugned order dated 10.09.2017 in which this petitioner alongwith the co-accused persons was summoned holding that there are sufficient grounds available on record for proceeding against them under Sections 323, 341, 406, 420 354/ 34 of the Indian Penal Code. Learned counsel appearing on behalf of the petitioner further pointed out that neither in the S.A. of the complainant Smt. Anuradha Choudhury nor in the deposition of the enquiry witnesses the specific role of this petitioner has been stated in order to constitute the offences punishable under Sections 323, 341, 406, -2- Cr.M.P. No. 824 of 2018 420 354/ 34 of the Indian Penal Code against this petitioner. Further it has also been pointed out that even in the complaint petition the name of the petitioner Prabhash Kumar @ Prabhash Sharma has not been mentioned as an accused on the body of the complaint petition and further it has also been submitted on behalf of the petitioner that basically the dispute, if any, is with respect to the landed properties of Khata No. 235 Plot No. 339 at one hand and on the other hand Plot No. 270 as evident from the complaint itself. Learned counsel for the petitioner has also pointed out that in the statements recorded of the enquiry witnesses i.e. E.W.-1 and E.W.-2, no role of this petitioner has been attributed for any kind of act in order to constitute the offence under which the summoning order has been issued against him and therefore, the impugned order is bad in law and fit to be set aside. On the other hand learned counsel appearing on behalf of opposite party No. 2, has opposed the contentions raised on behalf of the petitioner and submitted that although there is no specific allegation has been made against this petitioner but the petitioner alongwith the co-accused persons had forcibly took into possession of the land which was is dispute. It has also been pointed out that the landed property which is in dispute is related to Plot No. 339 which was taken on lease by the complainant-opposite party No. 2 for fifty years from Prafulla Dome who was the owner of the said plot No. 339 but the accused persons forcibly wanted to grab the property and therefore, the learned Trial Court has rightly passed the order and similarly the other enquiry witnesses have also supported the case of the complainant and therefore, there is no illegality in the impugned order and this Cr.M.P. is fit to be dismissed being devoid of merit. Having heard the parties, perused the records of this case. It is found that admittedly the dispute is related to the landed property with respect to Plot No. 339 which was taken on lease by the complainant and thereafter it was alleged that the accused persons alongwith this petitioner forcibly wanted to take possession of the said land and for which the complaint was made by the complainant before the S.D.O. under which the order for demarcation was given to the C.O. -3- Cr.M.P. No. 824 of 2018 Learned counsel appearing on behalf of the petitioner submitted that the order of the proceeding initiated under Section 144 of the Cr.P.C. which is at Annexure-5 by which it appears that the complainant-opposite party No. 2, has made an application for initiating the proceeding under Section 144 of the Cr.P.C. which has been rejected. Further it is also found that on earlier occasion a case was instituted by the complainant-opposite party No. 2, vide Mango P.S. Case No. 317 of 2016, corresponding to G.R. No. 2526 of 2016, registered under Sections 406, 420, 341, 354, 504 and 34 of the Indian Penal Code and after completion of the investigation the I.O. has submitted the final form absolving the petitioner from the charges levelled against him for the lack of evidence, thereafter the complainant-opposite party No. 2, has filed the protest petition on the basis of which the S.A. of the complainant-opposite party No. 2 was recorded. From the perusal of the S.A. the Court finds that there is no specific allegation at all against this petitioner for anyone of the offences punishable under Sections 323, 341,406, 420, 354/34 of the Indian Penal Code under which the summon has been issued by the learned Court below. From the statement of the two enquiry witnesses namely Sanjay Kumar Mukherjee and Santosh Kumar Verma which has been annexed as Annexure-2 and 2/1 of this Cr.M.P. the Court finds that no specific act have been attributed against this petitioner neither by E.W.-1 nor by E.W.-2 and even none of the Enquiry witnesses had taken the name of this petitioner. It has also been admitted by the complainant in her S.A. that the land in question was in possession of the accused persons and further not a single word has been attributed pointedly against this petitioner for committing either of the offences under Sessions 323, 341,406, 420, 354/34 of the Indian Penal Code. Having taken into consideration the aforesaid facts, it is found that the impugned order dated 10.09.2017 passed by the learned Judicial Magistrate, First Class, Jamshedpur in C1-Case No. 574 of 2017, against this petitioner is without any material and sufficient ground to proceed against this petitioner for the offence punishable under Sections 323, 341, 406, 420 354/ 34 of the Indian Penal Code and therefore, in order to prevent the abuse of the process of law it is just and fair to -4- Cr.M.P. No. 824 of 2018 quash the impugned order dated 10.09.2017 passed against this petitioner. From the perusal of the impugned order is appears that the learned Trial Court did not even disclose the slightest materials to proceed against this petitioner for the offences punishable under Sections 323, 341, 406, 420 354/ 34 of the Indian Penal Code and the impugned order has been passed without proper application of judicial mind. Accordingly, in the backdrop of these facts and for the ends of justice the impugned order dated 10.09.2017 passed by the learned Judicial Magistrate, First Class, and Jamshedpur in C1-Case No. 574 of 2017, passed against this petitioner is quashed and this Cr.M.P. is allowed. J.Minj (Navneet Kumar, J.)