Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2 of 2010 Suresh Kumar Chawda @ Suresh Kr. Chawra, son of Hari Lal Chawda, resident of Karbala Road, P.O. & P.S. Bank More, DistrictDhanbad .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Ehsanual Haque, son of Late Wakil Ahmad,resident of Wasseypur, Karimganj, P.S. Bank More, DistrictDhanbad .... .... .... Opp. Parties With Cr.M.P. No.1495 of 2007 Naresh Kumar Chawda son of Hari Lal Chawda, resident of Karbala Road, P.O. & P.S. Bank More, DistrictDhanbad .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Ehsanual Haque, son of Late Wakil Ahmad, resident of Wasseypur, Karimganj, P.S. Bank More, DistrictDhanbad .... .... .... Opp. Parties CORAM : HON'BLE MR. JUSTICE B.B. MANGALMURTI For the Petitioner : Mr. Shailesh, Advocate (In both cases) For the State : Mr. P.K. Appu, A.P.P. (In both cases) 05/28.07.2017 Instant application has been filed challenging the order dated 18.07.2007 passed by the Court of Shri Piyush Srivastava, Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No.1578 of 2003 whereby and whereunder the Court below took cognizance of the offence under Sections 323, 341, 380, 147 & 149 of the Indian Penal Code against the accused persons. 2. One of the accused Naresh Kumar Chawda preferred Cr.M.P. No.1495 of 2007 whereas accused Suresh Kumar Chawda @ Suresh Kr. Chawra preferred Cr.M.P. No.02 of 2010 before this Court. 3. The short fact relevant to this case are that initially a Miscellaneous case no.333 of 2003 was filed on 13.03.2003 before the Court of Chief Judicial Magistrate, Dhanbad by Md. Ehsanual Haque under Section 39 of the Code of Criminal Procedure in the form of Information that he is tenant of the opposite party and running a business of Vulcanizing in the tenanted premise and paying monthly rent of Rs.300/. He was being threatened by the opposite party for the last two months to vacate the premise as because opposite party intent to let out to some other persons. He has every apprehension of dispossession wrongfully and forcefully. Thereafter, the complainantEhsanual Haque preferred a Title Suit No.140 of 2003 before the Court of Munsiff, Dhanbad for declaration and injunction with prayer to 2 declare that the defendants had no right to take possession of the tenanted premises by eviction as described in the schedule below. Further prayer was for a decree of injunction restraining the defendants, their men, agents, servants, employees etc. to interfere and obstruct the peaceful enjoyment of the tenanted premise as well as the cost of suit and any other reliefs. Thereafter, he also preferred C.P. Case No.1578 of 2003 before the Court of Chief Judicial Magistrate, Dhanbad stating therein that he is in occupation of the tenanted premise since 1968 on payment of rent. He is carrying his business of Vulcanizing Works. The opposite parties are pressurizing to vacate the premise and for which threatening was given upon his life also. Then he filed an Information application in the form of Miscellaneous Petition before the Chief Judicial Magistrate. He also approached the Deputy Commissioner and Superintendent of Police, Dhanbad as well as Sub Divisional Officer but the authorities did not take any steps against the accused persons. The complainant filed a Title Suit No.140 of 2003 against the accused persons wherein it was averred that the accused persons loaded his articles from his business premise on a truck and also assault inflicted upon them. The accused persons looted his articles and ordered for demolition of the shop premise. It prompted him to file this Complaint petition. In the last Paragraph he has mentioned that the Bodyguard of the S.D.O., Dhanbad asked him to appear before the S.D.O. office where he was threatened and was pressurized to give in writing that he is vacating the premise on his own accord and thereafter he was allowed to go from the office. 4. The Court of Shri Abhimanyu Kumar, Judicial Magistrate, Dhanbad in C.P. Case No.1578 of 2003 after observing the legal formality, passed the order on 25.03.2004 dismissing the complaint case holding that there are civil dispute between the parties and the same is pending in the Court of Munsif. It is also clear from the statement of the complaint that he has no proof of tenancy nor filed any document. Hence, the Court felt that the case is of civil nature and prima facie no case is made out against the accused persons. Thereafter, the complainant preferred revision before the Sessions Judge, Dhanbad which was numbered as Cr. Revision No.94 of 2004 and the same was allowed by terms of order dated 18.06.2004 setting aside the order of the Court below dated 25.03.2004. When after remand of the case from the Court of Sessions Judge again the matter was placed before the Court of Judicial Magistrate, 1st Class who after discussion, found the 3 prima facie case against the accused persons including both the petitioners under Sections 323, 341, 380, 147 & 149 of the Indian Penal Code and directed the complainant to file requisites. 5. Aggrieved by the order taking cognizance, one of the accusedNaresh Kumar Chawda preferred Cr.M.P. No.1480 of 2005 before this Court. This Court vide order dated 09.05.2006 found no illegality or irregularity as well as any occasion to interfere in the order of the Sessions Judge passed in Cr. Revision No.94 of 2004 but the order passed by the Judicial Magistrate taking cognizance of the offence on 27.07.2004 on the same set of facts calls for the interference on the ground of nonapplication of judicial mind and hence it was set aside with a direction to the Judicial Magistrate, Dhanbad to make a discreet enquiry into the materials on record and to pass a fresh speaking order upon application of judicial mind in accordance with law in complaint case no.1578 of 2003 and thereby allowed the Cr.M.P. No.1480 of 2005.
6. After the remand, Court of Shri Piyush Srivastava, Judicial Magistrate, 1st Class, Dhanbad where the case was pending at that time, after scrutiny of the materials on record again took cognizance under Sections 323, 341, 380, 147 & 149 of the Indian Penal Code and ordered to issue summon upon accused persons. 7. Aggrieved by that order of Judicial Magistrate, 1st Class dated 18.07.2007, the instant Cr.M.P. No.1495 of 2007 and Cr.M.P. No.02 of 2010 have been preferred in which notices were issued to the opposite party no.2 but inspite of notice published in the daily newspaper, no appearance was made by the opposite party no.2 so far. 8. Learned counsel appearing on behalf of the petitioner in both the criminal miscellaneous petitions submitted that some admitted positions are that the opposite party no.2 claimed himself to be the tenants of the petitioners carrying on the business of Vulcanizing within the premise of petrol pump of the petitioner. The other admitted facts are that since he was apprehensive of being evicted, firstly he gave Information petition before the Chief Judicial Magistrate, Dhanbad and thereafter preferred an Title Suit No.140 of 2003 in which injunction was also prayed. From the copy of the plaint, it would appear that he had averred that there is no documents of tenancy with him. Other admitted position are that when he approached the authorities of District Administration, the S.D.O. verbally granted him two months' time to vacate the premise. The complainant 4 could not obtained any order of injunction then he filed a complaint case before Chief Judicial Magistrate, Dhanbad which was initially dismissed under Section 203 of the Code of Criminal Procedure. Meanwhile, Title Suit was filed which was also dismissed for default on 11.05.2006.
9. Counsel for the petitioner further submitted that it was a case of civil nature and the Court below has rightly passed the order under Section 203 of the Code of Criminal Procedure but the same was set aside at the revisional stage. Therefore, the Magisterial Court took cognizance of the offence on 27.07.2004 but that order taking cognizance was set aside by this Court in Cr.M.P. No.1480 of 2005 and the matter was remanded back to the Court of Magistrate to pass fresh order after making discreet enquiry. He further submitted that the Court of Judicial Magistrate, 1st Class, Dhanbad without any discreet enquiry only on the materials already available on record again took cognizance. The Court of Judicial Magistrate was supposed to make a discreet enquiry taking into consideration of the order passed in the Title Suit as well as that the matter was of civil nature but the Court in a mechanical fashion, took cognizance of the offence. He placed reliance on the case of Vineet Kumar & Ors. Versus State of Uttar Pradesh & Anr. reported in 2017 SAR (Criminal) 479 by which the Hon'ble Supreme Court has held that where a criminal proceeding is manifestly attended with malafide 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, the interference is required as the matter was not dealt with in its right perspective. 10. He also submitted that this Court has inherent power under Section 482 of the Code of Criminal Procedure with the object of advancement of justice and in this case the complainant has filed civil as well as criminal case with an ulterior motive and the malicious intention to implicate the applicants to ventilate the personal grudge against them. 11. Learned A.P.P. appearing on behalf of the State submitted that inspite of notices issued on several times upon opposite party no.2 this Court has also ordered for publication of the notice in the newspaper which was published in the daily newspaper Dainik Jagran circulated in the area on 21.09.2015, but inspite of that nobody appeared on behalf of opposite party no.2. He further submitted that Title Suite was dismissed for non prosecution whereas the complainant has also filed an application in C.P. 5 case no.1578 of 2003 on 22.09.2011 for withdrawal of the case. Certified copy of withdrawal application has been filed through supplementary affidavit which is available on record.
12. Considering the above submissions of the parties and the materials available on record, I find that the Court of Judicial Magistrate could not comply the order of this Court passed in Cr.M.P. No.1480 of 2005 and without making any discreet enquiry passed the order taking cognizance upon accused petitioners which clearly indicate that he has not exercised his jurisdiction properly. The Court below while taking cognizance have also not considered the fact that a Title Suit for the self same relief was also filed and the complainant of that case who is opposite party no.2 herein allowed the said suit to be dismissed for nonprosecution. The Court has also not taken into consideration that the order of this Court was to pass speaking order after discreet enquiry but the same was not properly carried out. The Court below has also did not take into consideration that the proceeding was filed with a mala fide intention. The Hon'ble Supreme Court below clearly held that in case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana Vs. Bhajan Lal & Others reported in 1992 Suppl. (1) SCC 335 Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. Here in this case the criminal proceeding has been manifestly attended with an ulterior motive for wreaking vengeance on the accused which could not be allowed as it amounts to abuse of process of law. Thus, exercising jurisdiction under Section 482 of the Code of Criminal Procedure, in such circumstances, order dated 18.07.2007 passed by the Court of of Shri Piyush Srivastava, Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No.1578 of 2003 is set aside so far as these petitioners are concerned. 13. In the result, both the criminal miscellaneous petitions are allowed. (B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated, 28th July, 2017 Anit/A.F..R.