Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Miscellaneous Petition No. 3528 of 2013 --- 1.Manoj Yadav 2.Basant Yadav 3.Dhananjay Kumar Soni 4.Sahdeo Sahu … … Petitioners Versus 1.The State of Jharkhand 2.Deo Narayan Yadav … … Opposite Parties --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioners : Mr. Umesh Kumar Choubey, Advocate For the Opposite Party No. 1: Mr. Arun Kumar Pandey, A.P.P. For the Opposite Party No. 2: M/s. B. K. Dubey & N. K. Roy, Advocate --- 9/22.12.2014 Heard the learned counsel for the petitioners, learned counsel for the State and the learned counsel for the opposite party no.
2. 2. In this application, the petitioners have prayed for quashing of the order dated 05.06.2013 passed by the learned Judicial Magistrate, Chatra in C. P. Case No. 132 of 2013 by which cognizance has been taken for the offences under Sections 147, 148, 149, 436 and 427 of the Indian Penal Code.
3. The prosecution story as would appear is that on 26.09.2012 at about 9:00 P.M. while the informant/complainant namely, Deo Narayan Yadav was attending the festival of Karma Puja near the temple, he saw that his house was set at fire by some culprits and immediately when he rushed to his house, he saw the accused persons fleeing away. It had also been alleged therein that the informant/complainant had identified those persons and he had further alleged that property worth more than Rs. one lac had been damaged by the fire.
4. The First Information Report being Tandwa P. S. Case No. 56 of 2012 corresponding to G.R. No. 797 of 2012 was instituted and after investigation final form was submitted on the ground of lack of evidence. Consequent to the submission of the final form, the informant/complainant filed a protest cum complaint petition which was -2- registered as C.P. Case No. 132 of 2013 and vide order dated 05.06.2013, the learned court below was pleased to take cognizance for the offences under Sections 147, 148, 149, 436 and 427 of the Indian Penal Code.
5. The learned counsel for the petitioners has assailed the impugned order taking cognizance by submitting that a perusal of the complaint petition does not reveal any commission of offence so as to attract the provisions of Sections 147, 148, 149, 436 and 427 of the Indian Penal Code. He has also submitted that after the First Information Report was instituted, a thorough investigation was conducted by the police, but since there was a lack of evidence, as such the final form was submitted and the learned court below while taking cognizance did not apply its judicial mind and on a routine manner cognizance had been taken under the aforesaid sections. He has further submitted that in fact both the parties are on litigating terms inasmuch as, a partition suit was instituted by the father of the petitioner against the informant/complainant being Title (Partition) Suit No. 31 of 2012 and on account of bad blood between the parties, the present case has been instituted. He has further submitted that there are several discrepancies with respect to the time of occurrence and the manner of occurrence and in such event, the continuation of the criminal proceedings as against the petitioners would be an abuse of the process of Court.
6. The learned counsel for the petitioners in the aforesaid context has referred to some judgments in the case of - “State of Haryana and others Vs. Ch. Bhajan Lal and others” reported in AIR 1992 SC604 “Hit Narayan Choudhury Vs. The State of Bihar & Anr.” reported in 1999 (2) PLJR279and “Sanjay Kumar Singh and another Vs. State of Jharkhand” reported in 2010 (3) JLJR.
7. In the case of “State of Haryana” (supra), the Hon'ble Supreme Court had categorised the cases in which the High Court may in exercise of powers under Article 226 of the Constitution of Inda or under Section 482 of the Code of Criminal Procedure may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The learned counsel for the petitioners while referring to the said judgment has submitted that the present case squarely falls within the -3- categorised clauses and as such the continuation of the present proceedings will be an abuse of the process of Court.
8. In the case of “Hit Narayan Choudhury” (supra), the order taking cognizance was quashed on the ground of submission of final form as also due to the long pendency of the matter. The case mentioned above was with respect to passing of a fresh order after remand without giving any reasons and this judgment is not applicable in the present case.
9. As regards, the order in the case of “Sanjay Kumar Singh” (supra), the same was with respect to challenge made for declaring the petitioners in that case as permanent absconders without receiving any execution report of the warrant of arrest or processes issued under Section 82/83 of the Code of Criminal Procedure. The learned counsel for the petitioners while referring to this judgment brought to the notice of the Court an Interlocutory Application having been filed by him being I. A. No. 6000 of 2014 in which he sought permission to bring on record that during the pendency of the present application, process under Section 82 of the Cr.P.C. has been issued. This in my view cannot be entertained at this stage because of the fact that the Court is primarily concerned with respect to the validity or otherwise of the order taking cognizance and if at all there has been an illegality in the issuance of process under Section 82 of Cr.P.C., the petitioners are at liberty to challenge the same by way of an application under Section 482 of Cr.P.C. and not by way of an interlocutory application as has been done herein.
10. The learned counsel for the opposite party no. 2 has submitted that the complaint itself reveals specific allegation against the petitioners and the learned court below did not commit any illegally in taking cognizance for the offences under Sections 147, 148, 149, 436 and 427 of the Indian Penal Code. He has further submitted that the allegations which have been levelled against the petitioners do not come within the guidelines formulated by the Hon'ble Supreme Court in the case of “State of Haryana Vs. Ch.Bhajan Lal & Ors.” (supra) and as such no interference with the order taking cognizance dated 05.06.2013 is warranted. The learned counsel for the opposite party no. 2 has relied on a judgment in the case of “Abhinandan Jha & Ors. Vs. Dinesh Mishra” reported in AIR 1968 SC117 wherein it was held -4- that “there is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled to, notwithstanding the opinion of the police, to take cognizance under Section 190 (1) (c) of the Code.” The learned counsel therefore submits that the learned court below adopted a correct approach by taking cognizance of the offence mentioned therein.
11. The learned counsel has further relied on the judgment in the case of “State of Bihar & another Vs. Shri P. P. Sharma & another” reported in AIR 1991 SC1260 as also the case of “State of Maharashtra and Ors. Vs. Arun Gulab Gawali and Ors.” reported in 2010 (10) SCC701 which also considered the judgment delivered in the case of “State of Bihar Vs. P. P. Sharma” (supra) and based on this judgment, the learned counsel for the opposite party no. 2 has submitted that reliance on affidavits would be a weak and unreliable source for adjudicating on the fate of a trial and when the complaint itself prima facie makes out an offence, the defence documents cannot be relied upon at this stage.
12. After hearing the learned counsel for the petitioners and the opposite party no. 2 and after going through the records and the case laws discussed hereinabove, I find that the protest cum complaint petition upon which cognizance was taken by the learned court below vide order dated 05.06.2013 does not suffer from any illegality or infirmity. Inherent powers exercisable by this Court has to be invoked sparingly and in such circumstances where the continuation of the criminal proceedings will be an abuse of the process of Court. The ingredient necessary to prima facie constitute a case under Sections 147, 148, 149, 436 and 427 of the Indian Penal Code is evident from a perusal of the complaint petition and in such view of the matter under the provisions of Section 482 of Cr.P.C., this Court would be reluctant to exercise its inherent powers in interfering with the criminal proceedings.
13. As a result of the discussions made hereinabove coupled with the judicial pronouncements, I am not inclined to entertain the present criminal miscellaneous application. This application along with I.A. Nos. 5316 of 2014 and 6000 of 2014 is accordingly dismissed. However, the -5- petitioners are at liberty to raise all the points before the learned court below at the appropriate stage. (R. Mukhopadhyay, J) R.Shekhar Cp 3