IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.31423 of 2009 Hem Nath Choudhary Versus State Of Bihar & Anr ---------------------------------- 4 16.12.2011 Heard Mr. Manoj Kumar Jha, learned counsel for the petitioner, learned counsel for the State and Mr. Vindhyachal Singh, learned counsel for the informant. This application has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) for quashing the order dated 28.07.2009 passed in a case arising out of Agamkuan P.S. Case No. 214 of 2007 and G.R. No. 2424 of 2007 by the learned Additional Chief Judicial Magistrate, Patna City, whereby the learned Magistrate while accepting the chargesheet has taken cognizance of the offence punishable under Section 406 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘SC/ST Act’). The substance of allegation as set out in the F.I.R placed at Annexure-1 of the application charges the petitioner of not making payment of rent to the informant and on demand thereof abusing him by use of intemperate language and of insulting him by calling him by his caste name. Learned counsel for the petitioner with reference to a lease agreement placed at Annexure-2 of the application, submits that the godown of the informant was taken on lease by the petitioner for a period of 11 months beginning with effect from 2 01.09.2005 to 31.07.2006 on a rental of Rs.15000/- per month. In terms of Clause 2 of the said licence the petitioner was to make payment of the rent of the premises by 5th day of each month and upon failure of the petitioner to pay rent for two consecutive months, would entitle the landlord i.e the informant, to evict the petitioner. Clause 6 of the said Licence agreement further provides for expiry of the lease hold period at the end of 11 months subject to its renewal with the consent of both the parties. Clause 8 of the said deed further required the petitioner to pay a security amount of Rs. 45,000/- refundable at the end of the Licence period and upon vacation of the godown in question. It is the case of the petitioner that the Licence period having expired on 31.07.2006, when the petitioner demanded the refund of the security amount of Rs. 45,000/- from the informant, he refused to refund the same. A legal notice in this regard was sent to the informant through the counsel of the petitioner on 07.08.2006 i.e. within 7 days of the expiry of the lease hold period, for refund of the security amount. It is further the case of the petitioner that the informant instead of responding to the legal notice, telephonically abused him and for which he filed a sanha with the local police station at Darbhanga on 11.09.2006. Copy of the legal notice and the informatory petition are placed at Annexures 3 and 4. Learned counsel for the petitioner contends that the criminal case in question is an outburst and in retaliation of the demand made by the petitioner for refund of the security amount, having been instituted 3 after a lapse almost 17 months of the expiry of the lease hold period on 18.12.2007. The F.I.R. was instituted alleging non payment of rent by the petitioner since after October, 2005 until the expiry of the lease hold period on 31.07.2006. Learned counsel for the petitioner with reference to Clause 2 of the Licence deed submits that even where the said clause enabled the landlord-informant to evict the petitioner upon default of payment of rent in two consecutive months, no such action was taken by him, implying payment of the rental by the petitioner regularly. He submits that it is only in retaliation of the legal notice dated 07.08.2006 that the present case came to be instituted on 18.12.2007 i.e. after 17 months of the expiry of tenancy on 31.07.2006 alleging non payment of rentals during the lease hold period. It is thus contended that the institution of the case alleging non payment of rent, after such long lapse of the expiry of the lease hold period, by itself manifests that the institution of the case is in a nature of malicious prosecution instituted with the sole intension of harassing the petitioner and to deny him the refund of the security amount. He further contends that in absence of any clarification by the petitioner regarding the abusive language used by the petitioner undermining his caste identity and belittling his dignity, no case is made out for invoking the provision of SC/ST Act. Learned counsel further submits that even if the offence of non payment of rent is taken on its own face value though not admitted, no case of breach of trust is made out and the allegation 4 made by the petitioner at best makes out a case of breach of contract, to be tested and resolved in a court of competent civil jurisdiction and in which view the invocation of the criminal process and its continuation would be an abuse of the process of the Court. He thus submits that the basic ingredients for constituting an offence punishable under Section 406 and Section 3(1)(x) of the Section SC/ST Act being absent in the present case, the institution as well as the continuation of the proceedings would be an abuse of the process of the Court. Learned counsel for the State has opposed the contention of the petitioner and submits that no interference is called for in the order taking cognizance passed by the Court of competent jurisdiction. Mr. Vindhyachal Singh, learned counsel for the informant very vehemently tried to support the accusations in order to demonstrate that the allegations made in the F.I.R. very well constituted an offence punishable under Section 406 of the Indian Penal Code as well as Section 3(1)(x) of the SC/ST Act. It was sought to be canvassed that the non payment of rent by the petitioner for the period since after October, 2005 until the expiry of the lease hold was a breach of trust reposed by the landlord in the tenant petitioner while leasing out his property to him with the trust that he would be abiding with the terms of the contract of the lease and the failure on the part of the petitioner to abide by the same and having violated the undertakings which forms the condition of the 5 Licence, has subjected him to the offences punishable under Section 406 of the Indian Penal Code. With reference to the accusations made under the provisions of the SC/ST Act, learned counsel submits that it is not necessary that the abusive language made by the petitioner should be put in black and white and as long as the same is reflected from the accusations though made in a guarded language yet it would suffice prosecution under the provisions of the SC/ST Act. Learned counsel submits that during the course of investigation it has come to light that the petitioner had used abusive and intemperate language undermining the dignity of the informant who belongs to a member of the SC/ST category and the language having been used in an abusive manner, it is sufficient for constituting an offence under the SC/ST Act. He thus, submits that in the circumstances that the learned Court below has exercised its jurisdiction and taken cognizance of the offences punishable under Section 406 of the Indian Penal Code and Section 3(1)(x) of the SC/ST Act upon consideration of the materials that has come to notice during the course of investigation, no interference is called for in the same and the application should be dismissed. I have heard learned counsel for the parties and have perused the materials available on the proceedings. Whether or not the allegation constitutes an offence punishable under Section 406 of the Indian Penal Code and/or Section 3(1)(x) of the SC/ST Act is the issue to be deliberated upon by this Court, in the light of the accusations set out in the F.I.R. 6 placed at Annexure-1 of the application. It does not require a detailed discussion to come to a conclusion that the present prosecution is a motivated prosecution having been instituted with ulterior motives and with sole intention of bringing the petitioner on his knees. The lease period having expired way back on 31.07.2006 with the petitioner defaulting in making payment of the rental since after October 2005, it took more than two years for the informant to realize this aspect and to institute a case for recovery of rent more than two years after it became due. My impression are much fortified by the fact, that the present case was instituted after a legal notice was issued by the petitioner requiring the refund of the security amount by the informant. In fact it took more than 16 months thereafter for this informant to institute the present case. It is in these circumstances that this Court by order dated 11.11.2009 had stayed the proceedings. Clause 2 of the licence deed placed at Annexure-2 in no uncertain terms empowered the informant-landlord to evict the petitioner from the premises, on default of making payment of rent in two consecutive months. As according to the informant the petitioner had defaulted in making payment of rent since October 2005, he was fully entitled to take recourse to appropriate proceeding for evicting the petitioner from the premises since after December 2005 but he did not choose to do so. On the contrary, he allowed the petitioner to remain in the premises until the conclusion 7 of the licence period on 31.07.2006. Even there after no legal recourse was taken for realization of the rent in question by the informant. It is only after the petitioner demanded the refund of his security amount that the informant dwell upon the novel idea of involving the petitioner in a criminal proceedings. Institution of a criminal case for realization of rent by taking recourse to the provisions of Section 406 of the Indian Penal Code is an out and out abuse of the criminal process. A trend is fast developing in recent times to involve alleged defaulters of civil wrongs in criminal cases and thus pressurizing him into a compromise. This short cut method of institution of a criminal case for resolution of a dispute which on face is of civil nature, is not only a misuse of the process of law but is also an avoidable burden on our overburdened criminal Courts. The case in hand is no different. For alleged non payment of rentals, not only the petitioner has been charged with breach of trust, he has also been attributed of having committed an offence punishable under the provisions of SC/ST Act. In the process the informant is conveniently silent on the refund of the security amount and why he permitted the petitioner to continue in the premises even when he was a defaulter. Another aspect which requires answer is that when the petitioner was enjoying the premises without payment of rent, where was the occasion for him to vacate the same on 31.07.2006. All these aspects go on to show that the proceedings in question is manifestly attended with 8 malafides. Turning to the allegation aspect under the SC/ST Act, it would manifest that neither the informant has mentioned his own caste nor does he elaborate as to how he has been offended. He does nothing to clarify the abusive language used by the petitioner for undermining his dignity by reference to his caste name. He also does not clarify as to where the occurrence took place except stating that it was made publicly. Even where the basic ingredients to constitute an offence under Section 406 IPC and Section 3(1)(x) of the SC/ST Act are grossly missing in the present case, yet learned court below has proceeded to take cognizance of the offences punishable under Section 406 of the Penal Code and the provisions of the SC/ST Act. Learned counsel for the informant is not correct in canvassing that an allegation need not be present in black and white and that as long as the intent to insult, undermine the dignity or intimidate a member of the SC/ST Community is reflected from the accusations, the use of guarded language by the complainant cannot act as an impediment to a prosecution under the SC/ST Act. The provisions of the SC/ST Act are very stringent and thus has to be followed with great deal of circumspection. A prosecution under the provisions of SC/ST Act cannot be permitted in a routine manner nor can be allowed to continue where the allegations are vague. One does not expect a verbosity on accusations but they have to be vivid, clear and specific even if 9 succinct or stated in a guarded language. The three basic ingredients to constitute an offence under the provisions of Section 3(1)(x) of the SC/ST Act namely: (i) The offender must not belong to SC/ST category, (ii) The offensive words must be used to offend the caste status of the complainant with a view to insult and intimidate him as a member of a SC/ST community and (iii) The alleged offence was committed within full public view, are conspicuously missing in the allegations set out in the present case. For the reason aforesaid, this application is allowed, the order taking cognizance dated 28.07.2009 together with the entire proceeding arising out of Agamkuan P.S. Case No. 214 of 2007 and G.R. No. 2424 of 2007 is quashed and set aside. Bibhash (Jyoti Saran, J.)