Rajeev Kumar v. The State of Jharkhand

Heard Mr. Nilesh Kumar, learned counsel for the petitioner and Mr. Manoj Kumar, learned counsel for the respondent-State.

3. The present petition has been filed for quashing the entire criminal proceeding including F.I.R. of SC/ST Case No. 56 of 2022 registered under section 419, 420, 467, 468, 471, 504, 506, 120B of the I.P.C., sections 3(i) (f) (r) (s) (g) of the SC/ST (Prevention of Atrocities) Act, pending in the Court of learned A.J.C.-II, Ranchi.

4. The F.I.R. has been lodged alleging therein that however, when the petitioner was taken into custody on 31.7.22 all of a sudden first information report has been instituted as against him on 16.8.22 by one Deepak Kachhap (Respondent No.2). In the said first information report, it has been alleged that in brief, in the year 1959 his great grandfather Kola Munda 2 had purchased a plot from one Md. Ibrahim situated at Khata No.84, Plot No.611, area 79 decimals out of 2 acres, 20 decimals vide deed No.5252. He further alleged that in the aforesaid plot No.611, he is residing with his relatives. Again the legal heirs of the earlier seller (Md. Ibrahim) illegally sold the aforesaid plot. On 22.3.22 boundary wall was erected. On objection the informant received threatening. It has further been alleged that legal heirs of Khatiyani raiyat and few land dealers namely Ali Asgar, Anil Kumar, Rajeev Kumar, All Irfan, Md. Islam illegally transferred/sold the earlier purchased land on the basis of forge and fabricated document and also on the basis of wrong genealogical chart and transferred the land of Scheduled Castes And Scheduled Tribes to the general people. It has further been alleged that when the illegal possession was objected, the aforesaid people extended threatening and abused him by taking the name of his caste. Accordingly present case was lodged.

5. Mr. Nilesh Kumar, learned counsel for the petitioner submits that the petitioner is an advocate and raised several issues including corruption against the higher of the State and he filed several Public Interest Litigations (PILs) before this Court. He submits that in some of the PILs appropriate orders have been passed by the Division Bench and thereafter the petitioner has been apprehended at Calcutta in one false and concocted case on 31.07.2022 in Hare Street P.S. Case No. 222 of 2022 and subsequently the petitioner has been enlarged on bail in that case. He submits that thereafter the present case has been lodged on 16.08.2022 against the petitioner alleging that scheduled tribe land has been purchased by this petitioner. By way of referring contents of the F.I.R. he further submits that allegations are that the purchasers who purchased the land from the original raiyat they have sold the land to this petitioner. He submits that no case against the petitioner is made out. He submits that the petitioner is being maliciously and falsely implicated in one 3 case after another. He submits that the petitioner has been implicated in as many as 9 cases and most of the cases are of Thakurgaon Police Station and even wife of this petitioner has not been spared. He further submits that even most of the cases filed against the petitioner has been transferred to the C.I.D. Based on this, he submits that maliciously the petitioner is being prosecuted in all the case. He submits that the petitioner is bonafide purchaser of the land in question and in view of that the case of petitioner is covered with the case of “ Mohd. Ibrahim & Others Vs. State of Bihar” (2009) 8 SCC 751. He refers to para 7, 8, 20 of the said judgment which is quoted hereinbelow:- “7. The question that therefore arises for consideration is whether the material on record prima facie constitutes any offences against the accused. The contention of the appellant is that if the allegations made in the complaint and FIR, even if accepted to be true in entirety did not disclose the ingredients of any offence of forgery (Sections 467 and 471) or cheating (Section 420) or insult (Section 504) or wrongful restraint (Section 341) or causing hurt (Section 323) and there was no other material to show any offence and therefore, their application ought to have been accepted.” 8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] and Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] ) Let us examine the matter keeping the said principles in mind. 20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. .

6. He further submits that even if chargesheet is submitted and cognizance is taken and if no case is made out on the basis of statement of F.I.R. at any stage the Court can exercise its power under Section 482 of Cr.P.C. and under Article 226 of the Constitution of India. He refers to the judgment of the Hon’ble Supreme Court in the case of “˜nand Kumar Mohatta and Another Vs. State (NCT of Delhi), Department of Home and Another (2019) 11 SCC 706. He refers to para 14 and 16 of the said judgment which is quoted hereinbelow:- 4

14. First, we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge-sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23] . In Joseph Salvaraj A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23] , this Court while deciding the question whether the High Court could entertain the Section 482 petition for quashing of FIR, when the charge-sheet was filed by the police during the pendency of the Section 482 petition, observed : (SCC p. 63, para 16) “16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant’s FIR. Even if the charge-sheet had been filed, the learned Single Judge [Joesph Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj 365] could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant’s FIR, charge- sheet, documents, etc. or not.” 16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237] . Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.

7. He submits that no allegation are made out and ingredients of SC/ST (POA) Act is absent and if land dispute is there, and no ingredient of that Act is made out, in the Special Act also the Court can exercise its power. He refers to the case of “ Hitesh Verma Vs. State of Uttarakhand” 2020 10 SCC 710 wherein para 16 it has been held as under: “16. There is a dispute about the possession of the land which is the subject-matter of civil dispute between the parties as per Respondent 2 herself. Due to dispute, the appellant and others were not permitting Respondent 2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the civil court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimidated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.”

8. He further submits that even there is no averment in the F.I.R. that the petitioner is not being member of SC/ST castes. He submits that in the above background the court is required to look into in between the lines as 5 case is maliciously lodged against the petitioner and the entire criminal proceeding may kindly be quashed.

9. He further submits that the informant has compromised the case with co-accused Ali Irfan against whom allegations are there to sell the land to Rajendra Kumar Singh and others persons in view of that criminal proceeding has been quashed in W.P.(Cr) No. 384 of 2023 by order dated

21.07.2023 and further the entire criminal proceeding has been quashed in W.P.(Cr) No. 509 of 2023 by order dated 10.08.2023 so far co-accused Ali Asghar is concerned. He further submits that these two persons are also named in F.I.R. and informant compromised the matter with them and in view of that and considering the judgment of the Hon’ble Supreme Court in that case of “Ramgopal and Anr. Vs. The State of Madhya Pradesh, in Criminal Appeal No. 1489 of 2012 along with Criminal Appeal No. 1488 of 2012 the F.I.R. and criminal proceeding has been quashed.

10. He submits that even the main allegations are against Ali Asghar and Ali Irfan with whom the informant compromised the case and on this ground alone the petitioner has been implicated and the entire criminal proceeding may be quashed.

11. On the other hand, Mr. Manoj Kumar, learned counsel for the respondent-State submits that now chargesheet has been submitted and learned court has already taken the cognizance which is not under challenge and in view of that at this stage no case of interference is made out. He submits that a supplementary counter-affidavit has been filed by the respondent-State wherein it has been disclosed that the statement of Kolha Munda has been recorded who has supported the case. The case was handed over to the CID by the State and the CID has investigated the matter. One Ram Munda and other witnesses have supported the case. He refers to several paragraphs of supplementary counter-affidavit and submits that no case of 6 interference is made out. He submits that the petitioner is accused in 10 cases which is disclosed in para xi of the supplementary counter-affidavit. He further submits that in view of above at this stage this Court is not required to exercise its inherent power and to buttress this argument, he relied in the case of “Ramveer Upadhyay & Anr. Vs. State of U.P. & Anr.” 2022 Live Law 396 SC (Para 39). Relying on the said judgment he submits that at this stage the power is not required to be exercised and the argument advanced by the learned counsel for the petitioner is subject matter of trial. He further submits that in two cases in which F.I.R. has been quashed by this Court that was based on the compromise and in the present case there is no compromise and the present case is required to make out before the learned court. He submits that two cases decided by this Court was passed based on the basis of judgement of Ramgopal (supra) In the case of Ramgopal (supra) the SC/ST Act was quashed on the basis of compromise wherein the case in hand nothing has been brought on record and thus case of Ramgopal (supra) was not applicable in the two cases decided by this Court. He further submits that quashing petition was further considered by the Hon’ble Supreme Court in the case of “Supriya Jain Vs. State of Haryana and Anr.” in Criminal Appeal No. 1780 of 2013 (Special Leave Petition (CRL) No. 3662 of 2023) . He refers to para 17 of that judgment.

12. On these grounds he submits that this Court may not interfere at this stage.

13. In view of above submissions of the learned counsel for the parties the Court has gone through the materials on record. Admittedly in the F.I.R. the allegations are made against Ali Asghar and Ali Irfan of selling the land. Looking into Annexure-2 which is sale deed between Rajendra Kumar and Rajeev Kumar (petitioner), it appears that Rajendra Kumar Singh has transferred the land in question to the petitioner. It appears that the said 7 Rajendra Kumar Singh purchased the land from Ali Asghar and earlier Ali Irfan was power of attorney holder. Looking into entire contents of F.I.R. read with sale deed, the complicity of this petitioner is not made out and if such a situation is there case of the petitioner is fully covered in the light of judgment of the Hon’ble Supreme Court in the case of Md. Ibrahim (supra).

14. It is an admitted fact that the petitioner filed several PILs and in some of the PILs appropriate orders have been passed by the Division Bench. Subsequently, the petitioner was made an accused in Hare Street P.S. Case No. 222 of 2022. In para xi of the supplementary counter-affidavit filed by the respondent-State it has been disclosed that Hare Street P.S. Case No. 222 of 2022 at Calcutta was filed on 31.07.2022, Thakurgaon P.S. Case No. 36 of 2022 was filed on 24. 09.2022, Thakurgaon P.S. Case No. 37/2022 was lodged on 26.09.2022, Thakurgaon P.S. Case No. 38 of 2022 was registered on 27.09.2022, Thakurgaon P.S. Case No. 38/2023 was registered on

03.09.2023, Thakurgaon P.S. Case No. 39 of 2023 was registered on

04.09.2023, Thakurgaon P.S. Case No. 40/2023 was registered on 04.09.2023, Thakurgaon P.S. Case No. 41/2023 was registered on 05.09.2023 and Thakurgaon P.S. Case No. 42/2023 was registered on 05.09.2023. Apart from that one another case was registered being Enforcement Directorate, Ranchi Case No. ECIR 05/2022 considering the schedule offence under PMLA. Filing of all the case after arresting of the petitioner in Hare Street P.S. Case No. 222 of 2022 and all in Thakurgaon and it has been submitted that after filing of the cases frequently most of the cases have been transferred to the CID. It appears that maliciously the cases are being filed against the petitioner. It was disclosed in the argument of Mr. Nilesh Kumar that even wife of the petitioner has not been spared and the case has also been filed against her.

15. Thus in the above background the Court is further required to consider as to whether the case under the SC/ST Act is made out or not. There 8 is no allegation that the petitioner was not being member of the SC/ST Caste in the said contents of the F.I.R. and that aspect of the matter was considered by the Hon’ble Supreme Court in the case “ Gorige Pentaiah Vs. State of Andhra Pradesh & Others (2008) 12 SCC 531 wherein para 6 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.”

16. Admittedly, the case is arising out of a land dispute and if such a situation is there, maliciously SC/ST case cannot be allowed to be inserted in the F.I.R. and in view of that case of the petitioner is covered in the light of Hitesh Verma(supra).

17. This Court comes to the conclusion that the said Act was maliciously inserted in the FIR. Further case of two of the accused persons has been quashed by this Court in W.P. (Cr) No 384 of 2023 and W.P.(Cr.) No 509 of 2023. From the query made by the Court about the challenge of that orders before the higher Court Mr. Manoj Kumar, learned counsel for the respondent-State is not in a position to say whether that orders have been challenged before the higher court or not. On the basis of compromise that orders have been passed considering the guidelines made by the Hon’ble Supreme Court in Ramgopal (supra).

18. Peculiarly all the cases have been filed in one police station i.e. Thakurgaon except Hare Street and the present one. The Court is not required to go into that aspect of the matter with regard to the filing of several 9 PILs by the petitioner but at the same time the Court is also not required to over look the fact that for some reason or other the petitioner is being targeted and if there is no allegation the High Court will not be justified not to quash the F.I.R. Once the informant decides to proceed against any of the accused with ulterior motive taking personal vengeance then he would ensure that F.I.R./ complaint is very well drafted with all the necessary pleadings and in view of that the Court is further require to into look into the averment made in F.I.R. as well as further to ascertain where necessary ingredients to constitute the alleged offences are disclosed or not. In a frivolous petition the Court owes a larger duty and in view of that the Court is require to look into the allegations with due care and circumspection and tries to read in between the lines. Identical was the situation in the case of “Haji Iqbal alias Bala Vs. State of U.P and others 2023 SCC Online 948. In that case several F.I.Rs have been lodged against Haji Iqbal and after examining the cases the Hon’ble Supreme Court came to the conclusion that maliciously that petitioner was implicated and case was quashed. Paras 11, 12 and 14 of the said judgement is quoted herein below:- “ 11. We take notice of the fact that in the entire FIR there is not a whisper of any allegation of rape or criminal intimidation against the appellant herein. All that appears on a plain reading of the FIR is that the appellant has been named as the accused No. 2. The other co-accused persons are directly or indirectly related to the appellant. The appellant is a Vice Chancellor of the Glocal University. We may not go into the serious allegations of political bias, etc. levelled by the learned senior counsel appearing for the appellant, but at the same time we should also not overlook the fact that for some reason or the other, the appellant is being targeted. The appellant has been shown as a history sheeter. If the FIR does not disclose anything against the appellant and even at the end of the investigation, if nothing incriminating has surfaced against the appellant herein, then the continuation of the criminal proceedings against the appellant herein would be nothing but gross abuse of the process of law. It appears that so far as the other co-accused are concerned, the investigation has been completed and charge sheet has also been filed. It further appears that the trial is in progress. 12. We are of the view that in the absence of any particular allegation in the FIR against the appellant herein, the High Court should not have declined to quash the FIR by way of a cryptic order saying that the appellant has criminal antecedents and the FIR prima facie reveals commission of congnizable offences. The High Court should have first inquired as to what type of allegations have been levelled against the appellant. By just naming the appellant in the FIR, offence cannot be said to have been committed by him. If any particular role is attributed or some 10 kind of active participation is alleged in relation to the alleged offence, then it would be a different scenario. 14. 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. 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.”

19. Further in view of the case of State of Haryana Vs. Bhajan Lal 1992 (supp) 1 SCC 335 the F.I.R. can be quashed in the light of guidelines made in para 102 of that judgement and that judgment still holds the fields.

20. No doubt in the counter-affidavit it has been disclosed that chargesheet has been submitted and the learned court has taken cognizance. In view of that above discussions when the prima facie case in the F.I.R. itself is not made out, this Court can quash the proceeding in view of para 14 and 16 of the judgment of Anand Kumar Mohatta (supra). The judgement relied by Mr. Manoj Kumar in the case of Supria Jain (supra) in para No. 17 on which the reliance has been placed the principle laid down in the case of “˜mit Kapoor Vs. Ramesh Chandra” (2012) 9 SCC 460 is quoted, that judgment is not in dispute. There are several judgments of the Hon’ble Supreme Court and identical aspect has been considered in the case of 11 “Niharika” and certainly Court sitting under Article 226 of the Constitution of India or section 482 of the Cr.P.C. is required to exercise its power with great caution and circumspection and this Court is conscious of the fact as this Court is examining the quashing of the F.I.R. The judgment relied by Mr. Manoj Kumar in the case of Ramveer Upadhyay (supra) the said judgment was passed considering the allegation in the complaint wherein the Court found that the offence of atrocities is made out. It is well settled that the judgments are applicable in the facts and circumstances of the each case and that aspect of the matter was considered by the Hon’ble Supreme Court in the case of“State of Orissa Vs. Sudhansu Sekhar & Others” reported in AIR 1968 SC 647 in which the Hon’ble Supreme Court has considered Earl of Halsbury, which is at page 651 of the said judgement quoted herein below for ready reference:- " On this topic this is what Earl of- Halsbury. LC said in Quinn v. Leathem, 1901 AC 495. "Now before discussing the case of Allen v. Flood, (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.’’

21. In view of above facts, reasons and analysis and further coming to the facts of the present case the Court finds that in the F.I.R. no allegation against the petitioner is made out. The case is arising out of civil dispute if any the case of the petitioner is covered in the light of above judgment discussed hereinabove.

22. Accordingly, the entire criminal proceeding including F.I.R. of SC/ST Case No. 56 of 2022 registered under section 419, 420, 467, 468, 471, 12 504, 506, 120B of the I.P.C., sections 3(i) (f) (r) (s) (g) of the SC/ST (Prevention of Atrocities) Act, pending in the Court of learned A.J.C.-II, Ranchi, is quashed.

23. This petition stands allowed and disposed of. Pending I.A. if any, stands disposed of. Satyarthi/A.F.R. ( Sanjay Kumar Dwivedi, J.)