Dr. Nishikant Dubey aged about 52 years S/o Shri Radhey Shyam Dubey R/o 18 v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3102 of 2022 ------ Dr. Nishikant Dubey aged about 52 years S/o Shri Radhey Shyam Dubey R/o 18, G.R.G. Road New Delhi, P.O. and P.S- GRG Road, District New Delhi- 110001 … Petitioner Versus The State of Jharkhand … Opposite Party For the Petitioner For the State ------ : Mr. Prashant Pallav, Advocate Mr. Parth Jalan, Advocate Mr. Ayush, Advocate : Mr. Manoj Kumar, GA III Mr. Deepankar, AC to GA III ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding including the First Information Report in connection with Devipur P.S. Case No.178 of 2021 registered involving offences punishable under Sections 188, 116, 171-F, 506 and 34 of the Indian Penal Code which is pending before the learned S.D.J.M., Dumka and other consequential reliefs. 3. The allegations made in the First Information Report by the informant who is Block Development Officer, Devipur is that on 13.04.2021 because of raising of slogan ‘Jai Shree Ram’ by the Members of the B.J.P, the other group objected to the same which resulted in a quarrel. After that the petitioner who is the Hon’ble Member of Parliament, in the night accompanied by a large number of his supporters in a mob, assembled near the mosque of the village, 1 Cr. M.P. No.3102 of 2022 majority of the population of which village are from minority community. With the intention of spreading communal disharmony, slogans were raised and statements were made to see each one. Because of deployment of administrative officers and police officers and forces, no communal occurrence took place and it was alleged that the petitioner being the Member of the Parliament, has violated Sections 188, 116, 171-F, 506 and 34 of the Indian Penal Code and as per the verbal order of the Deputy Commissioner, Deoghar, the
Legal Reasoning
Learned counsel for the petitioner relies upon the judgment of this Court in the case of Nishikant Dubey vs. The State of Jharkhand reported in MANU/ JH/0066 of 2024 and submits that therein this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Daulat Ram vs. State of Punjab reported in MANU/SC/0139/1962: 1962 Supp (2) SCR 812 paragraph-3 of which reads as under:- “3. The only question in this case is whether a complaint in writing as required by S. 195 had been presented by the public servant concerned. The public servant who was moved by the appellant was undoubtedly the Tehsildar. Whether the appellant wanted the Tehsildar to take action or not, the fact remains that he moved the Tehsildar on what is stated to be a false averment of facts. He had charged Hans Raj and Kans Raj with offences under the Penal Code and he had moved his superior officer for action even though he might have stated in the letter that it was only for his information. We are prepared to assume that he expected that some action would be taken. In fact his second letter that he had compromised the matter and the proceeding might be dropped clearly shows that it anticipated some action on the part of his superior officer. The question is therefore whether under the provisions of S. 195, it was not incumbent on the Tehsildar to present a complaint in writing against the appellant and not leave the court to be moved by the police by putting in a charge-sheet. The words of S. 1950 the Criminal Procedure Code are explicit. The section read as follows: "(1) No Court shall take cognizance-(a) of any offence punishable under Ss. 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some 2 Cr. M.P. No.3102 of 2022 is he public servant to whom subordinate; other ...............................................:" The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no court shall take cognizance except on such a complaint clearly show that in every instance the court must be moved by the appropriate public servant. We have to decide therefore whether the Tehsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in filing the charge sheet had satisfied the requirements of S. 195. The words "no court shall take cognizance" have been interpreted on more than one occasion and they show that there is an absolute bar against the court taking seisin of the case except in the manner provided by the section.” (Emphasis supplied) and submits that in that judgment, this Court considered that there is an absolute bar against the court taking cognizance of the case except in the manner provided by the Section 195 of the Code of Criminal Procedure, and the public servant whose order has alleged to have been violated, as the neither the Commissioner whose order has allegedly been violated nor any one superior to such public servant has lodged the complaint in the court alleging violation of Section 188 of the Code of Criminal Procedure, hence, registration of the First Information Report was not proper. In that case, this Court also relied upon the judgment of Patna High Court in the case of Dharmesh Prasad Verma Vs. The State of Bihar, reported in MANU/BH/0313/2016, para-17 of which reads as under:- “17. The provision prescribed under Section 195 of the CrPC has been carved out as an exception to the general rule contained under Section 190 of the CrPC that any person can set the law into motion by making a complaint, as it prohibits the Court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. The legislative intention appears to be clear from the language of Section 195 of the CrPC which clearly prescribes that where an offence is committed under Section 188 IPC, it would be obligatory that the public servant before whom such an offence is committed, should file a complaint before the jurisdictional Magistrate either orally or in writing. Hence, it would not be within the domain of the police to 3 Cr. M.P. No.3102 of 2022 register a case for an offence alleged under Section 188 of the IPC and investigate the same, as registration of an FIR for an offence under Section 188 IPC is not permitted by the CrPC.” as also in the case of State of U.P. Vs. Mata Bhikh and Others reported in MANU/SC/0698/1994: (1994) 4 SCC 95, para -16 of which reads as under:- “16. Therefore, in the light of the dictum laid down in Ajaib Singh [AIR 1968 SC 1422 : 1969 Cri LJ 4 : 70 Pun LR 1131] we are of the view that the successor in office of the public servant gets into the same position of the public servant concerned and he is in law eligible to file a complaint against wrongdoers. To say in other words, the successor in office falls within the ambit of the expression ‘public servant concerned’. The view taken by the High Court in the impugned judgment cannot be sustained and accordingly, the judgment of the High Court is set aside and the appeal is allowed.” 5. It is then submitted by the learned counsel for the petitioner that except the offence punishable under Section 188 of the Indian Penal Code all other offences in respect of which this F.I.R. have been registered, are non-cognizable offences except Section 116 of the Indian Penal Code and the offence punishable under Section 116 of the Indian Penal Code, is cognizable or not depends upon the related offences alleged to have been committed. It is then submitted that the First Information Report does not disclose as to which public order has been flouted by the petitioner and in the absence of the same, the penal provisions of the Indian Penal Code is not attracted. It is then submitted that the alleged non-cognizable offences are also not made out on the basis of the allegations made in this F.I.R. 6. Drawing attention of this Court to Section 155(2) of the Code of Criminal Procedure, learned counsel for the petitioner submits that the same stipulates that when the offences are not cognizable in nature, police is not entitled to register an F.I.R. and to investigate the matter without the order of the 4 Cr. M.P. No.3102 of 2022 Magistrate, as has been held by the Hon’ble Supreme Court of India in the case of Keshav Lal Thakur vs. State of Bihar, reported in MANU/SC/1763/1996: (1996) 11 SCC 557. 7. It is next submitted by the learned counsel for the petitioner that as for the same cause of action, the informants of the four other F.I.Rs. who are also public servants being the officers working under the Deputy Commissioner, Deoghar having registered four different F.I.R.s excluding the this F.I.R. and in respect of which the Criminal Miscellaneous Petition Nos.3246 of 2022, 3090 of 2022, 3091 of 2022 and 3100 of 2022 have been filed and the same were allowed and the four F.I.Rs being Devipur P.S. Case No.179 of 2021, Chitra P.S. Case No.59 of 2021, Madhupur P.S. Case No.119 of 2021 and Deoghar (Town) P.S. Case No.527 of 2021 have been quashed and set aside by the said judgment of this Court vide Nishikant Dubey vs. The State of Jharkhand (supra), hence, the same go to show that this F.I.R has been lodged for wrecking vengeance upon a respectable person like the petitioner who is undisputedly the Hon’ble Member of Parliament. Hence, it is submitted that the entire criminal proceeding including the F.I.R. of Devipur P.S. Case No.178 of 2021 which is pending before the learned S.D.J.M., Dumka, be quashed and set aside as the continuation of the same will amount to abuse of process of law. 8. Mr. Manoj Kumar, learned GA– III appearing for the State on the other hand vehemently opposes the prayer of the petitioner for quashing the First Information Report of Devipur P.S. Case No.178 of 2021 and by drawing attention of this Court to the Judgment of a co-ordinate Bench of this Court, in the case of Amitabh Choudhary Vs. The State of Jharkhand & Another passed in Cr.M.P. No. 856 of 2019, it is submitted by the learned GA– III that in 5 Cr. M.P. No.3102 of 2022 para-30 of the said judgment, the co-ordinate Bench of this Court has expressed the view that offence punishable under Section 188 of the Indian Penal Code being a cognizable offence, institution of the F.I.R. is not barred. 9. Mr. Manoj Kumar, the learned GA– III next relies upon the Judgment of Hon’ble Supreme Court of India in the case of State of Punjab vs. Raj Singh & Another, reported in MANU/SC/0038/1998 : (1998) 2 SCC 391 which judgment was also relied upon by the coordinate Bench in the case of Amitabh Choudhary Vs. The State of Jharkhand & Another (supra) formulating such view wherein in the facts of that case, when the High Court quashed the F.I.R. lodged against respondents of that case alleging commission of offence punishable under Section 419/420/467/468 of the Indian Penal Code by them in the course of proceeding of a Civil Suit on the ground that Section 195 (1)(b)(ii) of the Cr.P.C. prohibited entertainment of the investigation into the same by police, the Hon’ble Supreme Court of India held that Section 195 Cr.P.C. comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1) Cr.P.C. and it has nothing to do with the statutory powers of police to investigate into the F.I.R. to disclose cognizable offences in accordance with Chapter– XII of the Code of Criminal Procedure, even if the offence is alleged to have been committed in, or in relation to, any proceeding in court. 10. Learned GA– III next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Ashabai Machindra Adhagale vs. State of Maharashtra & Others reported in MANU/SC/0199/2009: (2009) 3 SCC 789, para-10 of which reads as under:- “10. It needs no reiteration that the FIR is not expected to be 6 Cr. M.P. No.3102 of 2022 an encyclop(cid:230)dia. As rightly contended by learned counsel for the appellant whether the accused belongs to Scheduled Caste or Scheduled Tribe can be gone into when the matter is being investigated. It is to be noted that under Section 23(1) of the Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short “the Rules”) have been framed.” And submits that F.I.R. is not expected to be an encyclopedia of the prosecution case and in the facts of that case where the offence involved were punishable under the penal provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was alleged to have been committed and for which the First Information Report was instituted, without mentioning whether the accused persons belong to Scheduled Castes and Scheduled Tribes, the Hon’ble Supreme Court of India held that for not mentioning the same, the F.I.R. cannot be quashed and submitted that as the investigation of the case is going on and there is every likelihood of the petitioner having committed the cognizable offence also punishable under other penal provisions of the law, apart from the offences in respect of which this First Information Report has been registered, will be found out during the investigation, hence at this nascent stage, the First Information Report and the entire criminal proceedings ought not be quashed and set aside. 11. Learned GA- III further relies upon the Judgment of Hon’ble Supreme Court of India in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra & Others, reported in MANU/SC/0272/2021: 2021 INSC 253, the relevant portion of paragraph No.80 of which reads as under:- 80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr. P.C. and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be 7 Cr. M.P. No.3102 of 2022 justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the final filed under Section 173 Cr. P.C., while report/chargesheet dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr. P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: investigation or till the is i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; vii) xxxxx ix) xxxxx x) xxxx xxxxxxx xviii) xxxxx the allegations made in and submits that police has a right under Chapter XIV of the Code of Criminal Procedure to investigate into a cognizable offence and the court would not thwart any investigation into the cognizable offences. It is then submitted that only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that court will not permit an investigation to go on. It is then submitted that the power of quashing should be sparingly exercised with circumspection in the rarest of rare cases and this criminal proceeding ought not to be scuttled at the initial stage and the quashing of a complaint/FIR should be an exception rather than an ordinary 8 Cr. M.P. No.3102 of 2022 rule. Hence, it is submitted that as this case does not come under rarest of rare cases, there is no justifiable reason to exercise the exceptional power of quashing the F.I.R. 12. Learned GA- III draw the attention of this Court towards the supplementary affidavit filed in this case wherein the Twitter posting of the petitioner has been attached which shows that he assembled with so many persons in violation of the order promulgated by the Chief Secretary of the State of Jharkhand prohibiting assembling of five or more persons at a public place because of the COVID-19 Pandemic. Hence, it is submitted that there is specific allegation against the petitioner of having committed other cognizable offences also. Therefore, there is no rhyme or reason to quash the F.I.R. or the entire criminal proceeding of Devipur P.S. Case No.178 of 2021. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 13. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to refer to Section 188 of the Indian Penal Code which reads as under:- 188. Disobedience to order duly promulgated by public servant.— Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both: and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, 9 Cr. M.P. No.3102 of 2022 or is likely to produce, harm. The essential ingredients of the offences punishable under Section 188 of the Indian Penal Code are as follows:- There was promulgation of an order; (i) (ii) Such promulgation was made by a public servant; (iii) Public servant was promulgation; legally empowered to make the (iv) Promulgation directed not to do certain things or to take certain orders in connection with certain property in his possession or management; (v) Accused knew of the promulgation; (vi) Accused disobeyed it; (vii) Such disobedience caused or intended to cause obstruction, annoyance, injury or risk of the same to a person lawfully employed or caused or tender to cause danger to human life, health or safety, or caused or tender to cause riot or affray. 14. Now coming to the facts of the case, in the F.I.R, there is no reference to promulgation of any order which has been violated by the petitioner. The allegations made in the F.I.R as already indicated above in the foregoing paragraphs of the judgment, itself goes to show that the basis for allegation of the offence punishable under Section 188 of the Indian Penal Code was the tweets made in twitter handle of the petitioner; who was undisputedly an Hon’ble Member of the Parliament at the relevant point of time. There is no allegation that there was promulgation of any order prohibiting any posting in twitter. 15. So far as the supplementary counter affidavit filed by the State is concerned, the same shows that at the relevant point of time the Chief Secretary of the State of Jharkhand promulgated an order inter alia prohibiting congregation of not more than five persons at any public place from 08.04.2021 to till 30.04.2021. There is no allegation in the F.I.R. that the photocopy of the alleged tweet made by the petitioner in his twitter handle shows that the petitioner was present in any congregation at any public place where more 10 Cr. M.P. No.3102 of 2022 than five persons congregated. In the absence of the same, the plain reading of the F.I.R. do not show commission of the offence punishable under Section 188 of the Indian Penal Code either; in absence of the allegations about the essential ingredients to constitute the offence punishable under section 188 of the Indian Penal Code. Though the investigation of the case is going on for a considerable period of time but there is no allegation made in the supplementary counter affidavit to allege commission of any other offence by the petitioner so far. 16. It is needless to mention that Section 195 of the Code of Criminal Procedure envisages filing of a complaint in writing by the public servant concerned, the contempt of whose lawful authority has been committed or some other public servant to whom he is administratively subordinate. 17. It is pertinent to mention here that the observation was made by the Hon’ble Supreme Court of India in the case of State of Punjab vs. Raj Singh & Another (supra) in respect of the offences punishable under Section 419/420/467/468 of the Indian Penal Code which were independent penal offences and there is no bar in respect of such offences for taking cognizance by any Court as is applicable to the offence punishable under Section 188 of the Indian Penal Code, in respect of which offence Section 195 of the Code of Criminal Procedure puts the restriction that no Court shall take cognizance inter alia of the offence punishable under Section 188 of the Indian Penal Code or abetment to commit such an offence inter alia except on the complaint in writing by the public servant concerned or of some other public servant to whom he is administratively subordinate. Hence, this Court is of the considered view that the observations made by the Hon’ble Supreme Court of India in the case of State of Punjab vs. Raj Singh & Another (supra) in respect 11 Cr. M.P. No.3102 of 2022 of the offences punishable under Section 419/420/467/468 of the Indian Penal Code cannot be used in respect of the offence punishable under Section 188 of the Indian Penal Code; in view of the specific bar for taking cognizance of the offence punishable under Section 188 of the Indian Penal Code, in Section 195 of the Code of Criminal Procedure. 18. Now going by the submissions made by the learned GA- III, the public servant concerned, whose order promulgated has been disobeyed, is the Chief Secretary of the State of Jharkhand. Neither the Chief Secretary nor anybody to whom the Chief Secretary of the State of Jharkhand is administratively subordinate, has made any complaint. There is no allegation that the petitioner knew the promulgation of any order by the Chief Secretary nor is there any allegation that he disobeyed the same. Hence, under such circumstances, this Court has no hesitation in holding that the allegations made in the F.I.R, even if are considered to be true in their entirety, still no offence punishable under Section 188 of the Indian Penal Code is made out. 19. So far as the offence punishable under Section 171F of the Indian Penal Code is concerned, the same envisages punishment for a person who commits undue influence or personation at an election. 20. Now coming to the allegations made in the F.I.R., even if the entire allegations made in the F.I.R. are treated to be true in their entirety, still the offence of commission of undue influence or personation at any election is not made out against the petitioner. Hence, this Court has no hesitation in holding that the offence under section 171F of the Indian Penal Code and not made out against the petitioner in this cases. 12 Cr. M.P. No.3102 of 2022 21. So far as the offences punishable under Section 506 of the Indian Penal Code is concerned, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Vikram Johar vs. State of Uttar Pradesh & Another reported in MANU/SC/0608/2019: 2019:INSC:583: (2019) 14 SCC 207, paragraph No.25 of which read as under :- 25. Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande [Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC 44 : (2014) 1 SCC (Cri) 715] has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are the ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th Edn. with regard to proof of offence states the following: “… The prosecution must prove: (i) That the accused threatened some person. (ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of someone in whom he was interested; (iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.” A plain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above.” (Emphasis supplied) This Court after going through the materials in the record and the contents of the F.I.R., do not find that there is any allegation against the petitioner that he threatened any person or that he did so with intent to cause alarm to the victim or to cause the victim to do any act which he was not legally bound to do or omit to do any act which he was legally entitled to do in the means of avoiding execution of such threat. Under such circumstances, this Court is of the considered view that the allegations made in the F.I.R, even if 13 Cr. M.P. No.3102 of 2022 are considered to be true in their entirety, still no offence punishable under Section 506 of the Indian Penal Code is made out against the petitioner. 22. So far as the offence punishable under Section 116 of the Indian Penal Code is concerned, the same intends punishment for a person who abets an offence punishable for imprisonment. Now coming to the allegations made in the F.I.R., this Court finds that there is no allegation against the petitioner of abetting the commission of any offence punishable with imprisonment. 23. Under such circumstances, this Court is of the considered view that even if the allegations made in the F.I.R. is considered to be true in its entirety, still the offence punishable under Section 116 of the Indian Penal Code is not made out against the petitioner. 24. In view of the discussions made above, since none of the offences alleged in the F.I.R. is made out against the petitioner, even if the contents to the same are considered to be true in their entirety; hence, this Court is of the considered view that the continuation of the criminal proceeding including the F.I.R. of Devipur P.S. Case No.178 of 2021, against the petitioner will amount to abuse of process of law and this is a fit case where the First Information Report be quashed and set aside. 25. Accordingly, the entire criminal proceeding including the F.I.R. of Devipur P.S. Case No.178 of 2021 is quashed and set aside. 26.
Decision
In the result, this Cr.M.P. stands allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 10th of May, 2024 AFR/ Animesh-Saroj 14 Cr. M.P. No.3102 of 2022