Harischandra Patel Vs. State of Orissa - Court Judgment

Indrajit Mahanty, J.

1. In this application under Section 482 Cr.P.C, the petitioner-Harischandra Patel has sought for quashing the order of cognizance dated 15.12.2008 passed by the learned S.D.J.M., Bolangir in G.R. Case No. 535 of 2008 taking cognizance against the petitioner and another under Sections 452, 332, 427, 506/34 I.P.C.

2. Shorn of unnecessary details, as would be evident from the case records, an F.I.R. was lodged by the informant-William Bilung, who was then working as the Special Land Acquisition Officer, Lower Suktel Irrigation Project, Bolangir alleging that on 12.8.2008 at about 5.30 PM while the informant was in his office, the petitioner along with one Banamaii Khuas (co-accused) entered into his office and demanded advance payment for the fruit bearing trees situated over the land which was acquired from the petitioner and others under the Land Acquisition Act. It appears that when the informant denied to fulfil their demand, a group of 10 to 12 persons who were in his office and started arguing with him. It is further alleged that in course of such argument, the co-accused Banamaii Khuas, assaulted the informant and threatened to kill him which resulted in filing of the F.I.R.

The medical examination of the informant was conducted on the same day which reveals that there was one bruise of 1' x 1' on the left side of the face which according to the doctor, was caused by hard and blunt object. From the 161 statement of the informant, it appears that a group of persons had entered into the office of the informant and demanded advance payment for fruit bearing trees on the ground that, his predecessor in office had paid advance payment in respect of fruit bearing trees. On their demand, the informant stated that he was not bound by the precedent, the co-accused Banamaii Khuas got annoyed and assaulted the informant and threatened to kill him.

3. Learned Counsel for the petitioner, inter alia, submitted that on reading of the F.I.R. as well as the statements recorded under Section 161 Cr.P.C, no offence whatsoever is made out against the petitioner. He contended that the office of the Land Acquisition Officer is a 'public place' and the petitioner has every right to go to that office and make request for release of advance compensation towards fruit bearing trees. Since the alleged assault and threat was made by Banamaii Khuas, the petitioner should not be dragged to such a case by aid of Section 34 IPC.

4. Learned State counsel, on the other hand, submitted that the demand for payment of advance compensation on account of fruit bearing trees not being permissible in law and the petitioner was part of the group of persons who were present in the office of the informant and made unlawful demand, he cannot escape from the offence committed by the co-accused Banamaii and was liable under Section 34 I.P.C.

5. In the light of the aforesaid contentions advanced and on perusal of the F.I.R,, case diary and 161 statements, it is clear that for the purpose of implicating the present petitioner in the present case, aid of Section 34 has been taken by the Investigating Officer. The scope of Section 34 has been settled by the Hon'ble Supreme Court in the case of Ashok Kumar v. State of Punjab : AIR 1977SC 109 and Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh : AIR 1993 SC 1899 which have been reaffirmed in a judgment of the Supreme Court in the case of Javed Alam v. State of Chhatisgarh and Anr. (2009) 6 SCC 450.

6. In terms of the law laid down by the Supreme Court, it is clear that Section 34 has been enacted on the 'principle of joint liability' in the commission of a criminal act. While the section is only a rule of evidence, the same does not create a substantive offence. It is laid down in the aforesaid judgments that the distinctive feature of the Section 34 is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises within Section 34, if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of such common intention is seldom available and, therefore, such intention can only be 'inferred from the circumstances' appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of 'common intention', the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime.

7. Apart from the aforesaid judgment of the Supreme Court, it is also relevant to take note of the another judgment of the Hon'ble Supreme Court in the case of Sarabjit Singh and Anr. v. State of Punjab and Anr. : AIR 2009 SC 2792 and in particular paragraph-18 of the said judgment which reads as follows:

18. xx xx Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the Court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the Court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction xx xx.

8. In the light of the aforesaid decisions of the Hon'ble Supreme Court, what is to be decided in the present case is whether a 'prima facie' case is made out by the prosecution for the purpose of taking cognizance against the petitioner. In the F.I.R. as well as in the statement of the informant recorded under Section 161 Cr.P.C, the presence of the petitioner at the site where the occurrence took place is not denied. Yet, on a plain reading of the F.I.R. and the 161 statement it is clear that the petitioner and others had gone to the office of the informant and made a demand for release of advance compensation for the fruit bearing trees in respect of the acquired lands and from the same it appears that the intention of the petitioner and the group which entered into the office of the informant was met to commit any crime. Therefore, from the same an allegation of criminal act cannot be made against the petitioner and others entering into the office of the informant, because their common intention appears to be only to demand for advance compensation. Secondly, it is an admitted fact that the office of the informant is a 'public office' and the allegation of the informant both, in the F.I.R. as well as in 161 statement, is that the assault was committed by one of the co-accused, namely, Banamali Khuas, but he has not whispered a single word about participation of the petitioner or any other person in the said assault, in any manner whatsoever.

9. In the light of the circumstances narrated herein above and keeping in view the judgments of the Supreme Court, I am of the considered view that the requirement of Section 34 Cr.P.C. in the present case has not at all been satisfied for the purpose of implicating the present petitioner as a co-accused in the present case. On a plain reading of the case records as well as the charge sheet, it appears that nothing has been made out by the prosecution to establish either directly or circumstantially that there was any plan or meeting of minds of all the accused persons to commit an offence, for which they have been charged with aid of Section 34 nor even prima facie it was established that there was any pre-arrangement or meeting of minds on the spur of he moment before commission of the crime.

10. In the light of the discussions made herein above, the CRLMC is allowed and the order dated 15.12.2008 taking cognizance against the petitioner is quashed.