… 1 ... IN THE HIGH COURT OF BOMBAY AT GOA PANAJI, GOA CRIMINAL APPLICATION (MAIN) NO.96 OF 2008 Shri Harischandra Lekhraj Melwani, resident of Moira, Bardez-Goa & anr. … Petitioners v e r s u s Shri Bhalchandra Naik, resident of Panaji-Goa … Respondent Mr.Haresh Jagtiani, Senior Advocate with Mr.Parag Rao for Petitioners. Mr.R. Satardekar for Respondents. CORAM : SMT.ROSHAN DALVI, J. DATE OF RESERVING THE JUDGMENT : 29th April 2009 DATE OF PRONOUNCING THE JUDGMENT : 8th June,2009 JUDGMENT: This Criminal Application challenges the order of the learned Judicial Magistrate, … 2 ... First Class (JMFC), Sattari at Volpoi, issuing process against the Petitioners in a complaint filed by the Respondent herein in Criminal Case No.20/P/2005 and the order of the Ad-hoc Additional Sessions Judge, Fast Track Court at Panaji in Criminal Revision Application No.89 of 2007 dated 5.3.2008. 2. The parties have been involved in a series of litigation by and between them essentially of civil nature pursuant to they being neighbours in their professional work. The Petitioners as well as the Respondent have mining lease/mining concession of 2 adjacent mines, common boundary of which has caused serious disputes between them with regard to access to their respective mining areas. 3. This Application is not concerned with the legal rights, if any, of either of the … 3 ... parties in the mining lease/mining concession claimed by them. However, it would be important to set out and understand the various actions undertaken and orders obtained by both the parties since last 2 decades in respect of the rights claimed and the disputes that emanated for both of them. 4. The earliest dispute is reflected in a private Criminal Complaint filed by the Respondent in 1989 being private Criminal Case No.40/P/1989 in the Court of JMFC, Sattari at Bicholim, Goa. In the order dated 30.6.1989, Petitioner No.1 herein and one Shantaram Samant were discharged from the said case upon they giving undertaking to the Court not to interfere in the mining area claimed by the respondent called “Poriem mine”. Criminal Case No.40/P/89 stood dismissed on 7.8.2003. The Respondent herein filed Contempt Petition No.10 of 1999 in … 4 ... the said Criminal Case No.40/P/89. The Application of the Respondent for setting aside the dismissal order was rejected on 8.11.2004. 5. The Petitioners herein lodged the Complaint against the Respondent for having trespassed into the area of their mining Lease No.39/53 granted to M/s.H.L. Nathurmal Mines in Survey Nos.72 to 80 of village Harvalem called “Harvalem Mine” i.e. the mining lease claimed by the Petitioners. Upon their complaint of trespass and intimidation, Criminal Case No.13/S/ 96/A came to be filed in the Court of the JMFC at Bicholim, Goa. Under order dated 7.2.2002, the Respondent herein came to be convicted of the offences under Sections 447, 506 and 379 of the Indian Penal Code (IPC) upon the evidence led on behalf of the prosecution upon the complaint of the Petitioners relating to the acts of trespass as well as intimidation and threat being accepted … 5 ... by the learned Magistrate and upon the fact that the Respondent herein (the accused therein)did not produce any documents to prove that the area where he extracted iron ore and loaded into trucks belonged to him in any capacity showing his possession or his right therein or that he was operating that mine. The Respondent, being then 70 years of age, was released under Section 3 of the Probation of Offenders Act, 1956 after due admonition on 5.3.2002. 6. The Respondent herein filed yet another private Criminal Case being Criminal Case No.143/ P/95, inter alia, against one Atchut Usgaonkar, who was the Constituted Attorney of the Petitioners herein, inter alia, for criminal trespass and theft. The process was refused to be issued by the learned JMFC on 31.3.1998 against the said Constituted Attorney of the Petitioners for want of any prima facie case in the complaint … 6 ... lodged by the Respondent and upon observing that the Respondent did not show any ownership rights or possession of the Poriem Mine in which he claimed to carry on certain mining operations for extracting iron ore under a mining concession bearing Title No.4/59 as the Chairman and Managing Director of M/s.Dahej Minerals Ltd. 7. The Petitioners filed Regular Civil Suit No.47/95/C in the Court of the learned Civil Judge, Junior Division at Bicholim, Goa, against the Respondent restraining him from interfering in their mining operations in Survey Nos.72 to 80 at Oilem, Harvalem. They contended that they were the concession holders of Concession No.39/53 in an area comprising 85.85 Hectares under the aforesaid survey numbers. The Petitioners set out how the Respondent was convicted and released on probation in the complaint lodged by the Petitioners since they … 7 ... had absolutely no right, title and interest in the said property and were held to have trespassed therein and interfered with the mining operations of the Petitioners. The Petitioners produced their documentary evidence containing certain photographs and certain Powers of Attorney for operating the mining lease. The Application for temporary injunction was dismissed by the Civil Judge, Junior Division at Bicholim, Goa on 14.7.2005, as they failed to show threats of the Respondent to dispossess them from their mining area though it was observed that they had shown their title and possession in the mining operations claimed by them. 8. The present complaint, in which process came to be issued, was filed by the Respondent herein on 28.9.2005 for an incident stated to have taken place on 18.09.2005 soon after the said Interim Injunction Application was refused … 8 ... by the Civil Court. In the Criminal Complaint, the Respondent, inter alia, alleged that there was a public road to go to his mine as shown in the plan annexed to the complaint. It was further alleged that the Petitioners herein, who claimed a mine which is called “Harvalem Mine”, were creating problems and involved in criminal acts against the Complainant. The criminal acts, which were alleged, were illegally restraining the Respondent herein by blocking the public road which was the only road giving him access to his mine. How the blockage was made has been set out. The verification statement of the Respondent herein as the Complainant in Complaint No.20/P/05 came to be recorded on 25.10.2005. Statement of two witnesses on behalf of the Respondent, as the Complainant therein, came to be recorded on 28.10.2005. The complaint remained at that until the order of issuing process was passed by the learned JMFC, Sattari on 21.9.2007 … 9 ... against the Petitioners herein. 9. In the meantime, the Respondent herein filed a Writ Petition in this Court being Writ Petition No.314 of 2004 claiming certain environmental hazards essentially against the Petitioners (Respondent Nos.6 and 7 therein) in which restraint order was refused to the Respondent herein on 17.10.2005. 10. From the order refusing to grant injunction dated 14.7.2005 of the Civil Judge, Junior Division, Bicholim, Goa, the Petitioners herein filed Miscellaneous Civil Appeal No.81 of 2005 in the Court of the District Judge (Fast Track Court, Mapusa). The order of the JMFC was set aside, the Appeal was allowed with costs of Rs.500/- and the Respondent herein came to be restrained from interfering with or entering into the property claimed by the Petitioners under the … 10 ... mining concession in Harvalem village. The order of injunction came to be passed on 21.6.2007. The learned District Judge has considered the case of the Petitioners as concession-holders in the property bearing Survey Nos.72 to 80 at Oilem, Harvalem, Goa since 1955. The learned Judge also considered the concession of the Petitioners herein that the Respondent purported to have mining activities in village Poriem, Taluka Sattari, though they had not carried out the mining operations for last 15/20 years. The learned Judge noted the admission of the Respondent herein about renewal of the lease initially granted to the predecessor-in-title of the Petitioners, though he contended that renewal was granted by fraud. The learned Judge considered the aforesaid Writ Petition filed by the Respondent in which the lease in favour of the Petitioners was considered by this Court (in their capacity as Respondent Nos.6 and 7 … 11 ... therein). The learned Judge also considered the initial conviction of the Respondent in Criminal Case No.13/S/96/A and the case of further trespass made out by the Petitioners in the said Suit. The learned Judge, therefore, considered that the Respondent had no right of whatsoever nature in the mining concession relating to the Petitioners and accordingly, restrained him from interfering therein. 11. In the meantime, the Respondent had filed another Suit against the Petitioners herein being Special Civil Suit No.52 of 2006 in the Court of Civil Judge, Senior Division, Bicholim, Goa, setting out his rights under mining Concession No.4/59 in the mining at Poriem, Sattari, Goa. The Respondent alleged that there was a public access road to the said mine shown in the map attached to his Suit. It was contended that the Petitioners herein had a … 12 ... mining lease next to the mining concession of the Respondent being Concession No.39/53 for the property situate in Oilem, Harvalem, Goa. It was further contended that the Respondent’s mining concession and the Petitioners’ mining lease were separated by the boundary line of village Poriem and village Harvalem, village Poriem being to the North of village Harvalem with only an access road to the mining concession claimed by the Respondent. It was contended that the said road was found in village Sanquelim to Honda passing along the Eastern and Southern boundary of the Petitioners’ lease area. It was further contended that the said road was a katchha road having 6/8 meters. That was a public road situate about 25 meters away from the boundary of the Petitioners’ lease area. It was also contended that public nature of the road was recognized and confirmed by Public Authorities and the Government. The cause of action in the Suit was the obstacles put … 13 ... on the said road by the Petitioners herein disturbing the Respondent’s access. It was contended that the Petitioners put fencing and constructed a structure of permanent nature to keep their guards therein illegally and in violation of the conditions of lease. The nature of the blockage on the public road, which caused obstruction to the Respondent herein from having access, was set out in the Respondent’s suit. The Respondent applied for a declaration that the Petitioners herein were not entitled to obstruct or object to the free use of the suit public road and injunction restraining the Petitioners herein from obstructing the Respondent’s access. This Suit came to be filed on 23.11.2006 after the Respondent failed to obtain any restraint order in his Writ Petition against the Petitioners herein. On 20.6.2007, the learned Civil Judge, Senior Division at Bicholim, Goa, refused the order of temporary injunction to the Respondent … 14 ... and dismissed his Application. The contention that the road leading to the mining concession of the Respondent was a public road was negatived. It was observed that the road claimed by the Respondent herein belonged to the Communidade of Harvalem. A letter of the Chief Officer of Sanquelim Municipal Council, stating that they had neither constructed nor maintained the said road, came to be considered. Hence, the case of the Respondent that it was a public road was negatived. Even the fact that the Respondent herein had no work concession for the past several years and hence there was no use of the suit road to them was observed. 12. The very next day i.e. on 21.6.2007, the learned District Judge set aside the order of the learned Civil Judge, Junior Division dated 14.07.2005 and granted an injunction in favour of the Petitioners against the Respondent’s … 15 ... interference in their mining activities. 13. There have been no Appeals filed by the Respondent herein either from order refusing injunction to the Respondent dated 20.6.2007 in his Suit being Special Civil Suit No.52 of 2006 or from the order granting injunction by the learned District Judge on 21.6.2007 in the Suit filed by the Petitioners herein being Miscellaneous Civil Appeal No.81/2005 in Regular Civil Suit No.47 of 1995. The fact that the access road claimed by the Respondent was not a public road and the fact that the Petitioners had a valid lease which they operated in the mining lease claimed by them in village Harvalem, came to rest. 14. In this scenario and at this juncture, within a month of the aforesaid two orders of injunction being passed by the two competent … 16 ... Courts, the Respondent obtained the order of issuing process in the criminal complaint filed by him since as far back as in 2005 upon the incident alleged to be of 18.9.2005 and upon the complaint being verified by the Petitioners on 25.10.2005 and two other witnesses on 28.10.2005. 15. It is contended on behalf of the Petitioners that the process has been mechanically issued by the learned Magistrate upon mere oral statements of the Respondent corroborated by two witnesses. It may, at once, be stated that though in the normal course the statements made and verified by the Respondent herein as the Complainant therein and corroborated by his two witnesses would be sufficient to issue process, it is argued that in this case the Respondent herein got the process issued upon statements which were false to his knowledge and upon suppression of the result of … 17 ... various litigations between the parties with regard to the same subject matter. 16. Indeed, it is seen that there have been criminal complaints and cross complaints, civil suits and cross suits filed by both the parties. The very first Complaint No.40/89 resulted in an undertaking, inter alia, by Petitioner No.1 that they would not interfere in the activities of the Poriem mine claimed by the Respondent herein. Indeed, the Petitioners even now do not claim any rights in the Poriem mine. There would be little reason for the Petitioners to go to the Poriem mine. Their statement that they had no concern with the mine had been recorded in the initial order of the learned JMFC, Sattari, dated 30.6.1989 itself. It is not even alleged by the Respondent that the Petitioners claimed any interest in the said mine. Even the Contempt Petition taken out by the Respondent herein in … 18 ... the said Criminal Case No.40/89 came to be dismissed and remained at that. Instead the complaint of the Petitioners herein under Criminal Case No.13/S/96 resulted in conviction of the Respondent. Because of his age, he was merely admonished and released under Section 3 of the Probation of Offenders Act on 5.3.2002. The Respondent’s Criminal Case No.143/P/95 resulted in even process being refused to be issued against the Constituted Attorney of the Petitioners on 31.3.1998. The Respondent’s Writ Petition No.314 of 2004 resulted in refusal of any restraint order against the Petitioners herein who are Respondent Nos.6 and 7 in that Writ Petition on 17.10.2005. The Respondent’s Civil Suit No.52 of 2006 resulted in an interim order of injunction being refused to him by the learned Civil Judge, Senior Division, Bicholim, Goa on 20.6.2007. The Petitioners’ Regular Civil Suit No.47 of 1995 resulted in an injunction … 19 ... order in Miscellaneous Civil Appeal No.81 of 2005 by the learned District Judge, Fast Track Court, Mapusa on 21.6.2007. All these orders have not been challenged further. Despite these orders passed in October 2006 and June 2007, the Respondent sought to prosecute his Criminal Case No.20/P/05 in September 2007. None but the Respondent knew the whole truth. None but the Respondent was bound by the order of injunction against him and had knowledge of the refusal of the order of injunction as well as any restraint order against him. 17. The Petitioners are rather agitated that the Respondent could take recourse to law in so abusive a manner. The Petitioners filed a Revision against the order issuing process on 10.12.2007. By the order dated 5.3.2008, the Revision came to be rejected upon it being seen that the process was issued since a cognizable … 20 ... offence was made out. The Petitioners have set out the above facts in an additional Affidavit filed by Petitioner No.1 in this Application quashing the aforesaid two orders issuing process and rejecting the Revision. It is argued on behalf of the Petitioners that the inherent powers of the Court under Section 482 of the Criminal Procedure Code are required to be invoked to quash the Criminal Complaint itself. 18. The learned Magistrate has issued process upon finding sufficient grounds for proceeding with the complaint of the Respondent under Sections 341, 431, 504, 506 and 283 read with Section 149 of the Indian Penal Code. 19. The essential case of the Respondent in the criminal complaint is that he was prevented from having an access from the public road by the acts alleged by him in the complaint. It is … 21 ... argued on behalf of the Petitioners that the very basis of the complaint would fall upon it having been seen that the said road was not a public road at all. It is argued that the Petitioners would certainly be entitled to restrain the entry of the Respondent in their private road passing through the mining concession of the Petitioners. In the additional Affidavit of Petitioner No.1, it is stated that there were certain letters issued by the Joint Directorate of Industries and Mines as well as other Public Authorities showing that the Respondent was not granted licence for extraction of ores in the concession claimed by the Respondent. Mr.Jagtiani also relied upon the letter issued to the Petitioners by the Sanquelim Municipal Council that the road claimed by the Petitioners was not constructed or maintained by the Council. He contended that these documents also would show total lack of any right, title and interest of the Respondent in the mining … 22 ... concession claimed by the Respondent as well as the fact that the access road claimed by the Respondent was not a public road and, therefore, the private road of the Petitioners within the mining concession of the Petitioners. Consequently, he argued that the process issued by the learned Magistrate upon the knowledge of these facts by the Respondent in the complaint of the Respondent required to be quashed as the very complaint smacked of abuse of legal process which was upon the statements false to the knowledge of the Respondent making them on oath. 20. The abuse in this case is alleged upon facts. The contents of the complaint, the verification statements as well as the statements of witnesses would, therefore, require to be ascertained. Criminal Case No.20/P/05 of the Respondent shows the statement of the Respondent that he is the owner in possession of the mining … 23 ... concession PC No.4/59 at Poreim village, Sattari Taluka, Goa, for 25 years which is a public road to go to the mine. The Petitioners claim a mine called “Harvalem mine”. They are creating problems and are involved in criminal acts, though they are legally not owners or in possession of Harvalem mine. The incident of 18.9.2005, which is set out, shows that the Respondent was illegally restrained from going to the mine by blocking public the only road leading to the mine by putting iron bars across the road, dumping stones and digging trenches. Criminal intimation and threat is alleged against certain other accused at the instance of the Petitioners herein. 21. The verification statement of the Respondent herein shows the same facts stated on oath as also the fact that the road, which has been blocked, forms the boundary line of villages … 24 ... Poreim and Harvalem. The statement of witness No.1 shows that on the date of the incident, he went with the Respondent and others on the said road when they were illegally restrained by the public road being blocked by iron bars put across the road and that “the accused” (there are 6 accused in the complaint, including 2 Petitioners) came to assault to them and all the accused threatened assault. The verification statement of the second witness shows that he was the Respondent’s driver and that on the date of the incident, he was proceeding in his vehicle on the public road with the Respondent and others when they were restrained by illegally putting iron bars leading to the mine to block the road. The accused also threatened assault and tried to assault them. Both the witnesses also deposed about certain prior incidents when the accused tried to assault them and damage their car. It is upon this material that the process is issued. … 25 ... It is upon this material that the learned Magistrate has found sufficient grounds for proceeding under the aforesaid sections. The learned Magistrate had no means of knowing whether the road on which the incident took place was a public or a private road. The learned Magistrate also had no means of knowing any prior litigations, civil or criminal between the parties and the orders passed therein. 22. Going through the aforesaid chronology, it becomes clear that the Respondent himself knew the progress of the various litigations and result, though that was not known when the complaint was filed on 28.9.2005. Since all the relevant orders have been passed in October 2006 and June 2007, it was known to the Respondent when the process was issued. It has to be considered whether in this scenario the process issued by the Magistrate upon the complaint filed … 26 ... and the verification statement made about 2 years before the process came to be issued can be quashed by the High Court exercising inherent powers, including the power of superintendence over the subordinate Courts to prevent abuse of legal process. It may, at once, be stated that upon reading the complaint and the verification statement as well as the statements of the two witnesses, a cognizable offence is certainly made out. This would merit process being issued in the normal course. Upon such process it is for the accused to appear before the learned Magistrate and stand the trial. Of course, it would be only upon the prosecution evidence being led that the accused would be entitled to lead his own evidence in view of the judgment of the Supreme Court in the case of State of Orissa vs. Debendra Nath Padhi (2005)1 SCC 568 in which the judgment in the case of Satish Mehra vs. Delhi Admn. (1996)9 SCC 766 has been set aside and … 27 ... which shall be referred to presently. 23. This case is not one in which the complaint on the face of it does not exhibit the cognizable offence and hence would require an order of rejection of the process being issued by the learned Magistrate. This is the case in which, from the material relied upon by the accused more specially the orders of the District Court as well as the High Court, which have come to be final, that the case of the complainant may stand dismissed or rejected. Even the orders in civil proceedings being the order in the Writ Petition dated 17.10.2005 refusing a restraint order, for want of alleged environmental pleadings obtained, inter alia, against the Petitioners herein to work the mining lease or the orders of the Civil Courts granting and refusing injunction to the Petitioners and the Respondent herein respectively upon seeing the … 28 ... respective prima facie cases of the parties, are only prima facie. Though they have become final pending the respective suits as also the writ petition, there may be more material that the Court may consider whilst passing the final reliefs in each of them. Besides, the documents of which a reference is made in the further Affidavit