CRIMINAL MISCELLANEOUS No.3292 OF 2000 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.DINESH PRASAD son of Chamari Mahto @ Surendra Prasad 2.Umesh Prasad son of late Ram Sharan Mahto 3.Damodar Prasad son of late Gur Sahay Mahto 4.Hari Mahto son of late Saudagar Mahto 5.Binod Prasad son of Chamari Mahto @ Surendra Prasad All resident of village-Noawan, P.S.-Asthawan Dist.-Nalanda. …… …….Petitioners Versus STATE OF BIHAR …… ……Opp.Parties -------- For the petitioners: Mr. Vidya Sagar Mr.Samir Kr. Ranjan. For the State: Mrs. Indu Bala Pandey, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR -------- Rakesh Kumar,J. Five petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 29.11.1999 passed by Sub-divisional Judicial Magistrate (Special Judge), Nalanda in Harijan P.S. Case No.16 of 1999. By the said order the learned Magistrate has taken cognizance of the offences under Sections 347, 341, 323 and 504 of the Indian Penal Code (hereinafter referred to as I.P.C.), Section 27 of the Arms Act and Section 3(x)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act, 1989 (hereinafter referred to as SC/ST Act.) 2. Short fact of the case is that a complaint was filed by one Pragas Choudhary which was registered as Complaint Case No.441 of 1999 in the court of Chief Judicial Magistrate, Nalanda 2 at Biharsharif. In the complaint petition it was disclosed that the complainant was continuing his possession in Mauza Nowawan over 12 decimals of land in plot no.2484. It was asserted that his forefather had purchased the land in question through sale deed in the year 1918 and since thereafter the families of the complainant were in possession over the land in question. However, the petitioners, who were having majority in the village, considering the informant/complainant as member of the Scheduled Caste and weaker section, forcibly destroyed the ridge of the field of the complainant and dispossessed the complainant from the land in question. When it was protested by the complainant, the accused persons opened fire and the complainant was also assaulted. After the occurrence the complainant went to the Officer-in-Charge of Asthawan Police Station. However, he was informed by the Officer-in-Charge that since the complainant was a member of Scheduled Caste it was advisable to file first information report in the Harijan Police Station. Accordingly, the complainant went to the Harijan Police Station. The Officer-in-Charge of the said police station suggested the complainant to file a case in the court since it was a land dispute also. Accordingly, the complaint was filed. After filing of the complaint petition, the said complaint was referred to the police for registration and investigation under section 156(3) of the Code of Criminal Procedure and a case vide Harijan P.S. Case No.16 of 1999 was registered for the offences under Sections 447, 341, 323 and 504 of the I.P.C., Section 3(x)(xi) of the SC/ST Act and section 27 of the Arms Act. The 3 police, after investigating the case, found the allegation true and, accordingly, in the case charge-sheet was submitted on 20.11.1999, as submitted by Mr.Vidya Sagar, learned counsel appearing on behalf of the petitioners. By order dated 29.11.1999 the learned Sub. Divisional Judicial Magistrate took cognizance of the offences under Sections 447, 341, 323 and 504 of the I.P.C., Section 3(x)(xi) of the SC/ST Act and Section 27 of the Arms Act. 3. Aggrieved with the order of cognizance, the petitioners approached this court by filing the present petition, which was admitted on 11.2.2000. While admitting the case, this court directed that pending disposal of this application, further proceedings in Harijan P.S. Case No.16 of 1999 pending in the court of S.D.J.M.,(Special Judge), Nalanda at Biharsharif shall remain stayed. 4. Mr.Vidya Sagar, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, at the very outset submitted that it was hardly a case of dispossession of the complainant from the land in question. It was submitted that during investigation none of the witnesses have supported the allegation of assault and abuse to the complainant by the accused persons. The complainant miserably failed to produce any document to prove his title and possession over the land in question. It was further submitted that during investigation, the investigating officer had also recorded that on examination of the record he did not find any chit of paper showing possession or title of the complainant. Accordingly, it has been argued that order of 4 cognizance was liable to be set aside, since no offence was made out. Learned counsel for the petitioners has taken the plea for quashing of the entire prosecution in the following way: (i) It was submitted that no case was made out either for violation of any provision of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act or any provision of the Indian Penal Code (ii)The complainant during investigation failed to produce any document of title or possession over the land in question (iii)The record shows that plot no.2488 was recorded in the name of Bandhu Mahto, who was grand father of some of the petitioners. 5. Learned counsel for the petitioner in support of his argument has referred to paragraphs 9 and 10 of the petition which are follows: “Paragraph 9: That the case diary further reveals that the informant did not produce any paper-document before the police so as to suggest that the said plot no.2488 was ever owned and possessed by the informant and his claim about his possession over the said land is quite false and without any basis. Paragraph 10: That it is not out of place to mention that late Bandhu Mahto,(khatiyani Raiyat of plot no.2488) had two sons namely Karu and Saudagar. Karu had a son Chamari @ Surendra Prasad, whose sons are petitioners Dinesh and Binod. Saudagar had three sons 5 namely Ram Sharan, Guru Sahay and the petitioner Hari. Petitioners Umesh and Damodar are the sons of Ram Sharan.” 6. Learned counsel for the petitioners, while pressing the petition, vehemently argued that even at the time of hearing a petition under section 482 of the Code of Criminal Procedure, this court may examine the statement of the witnesses recorded under section 161 of the Code of Criminal Procedure and the entire case diary and virtually, at the time of argument, Mr.Vidya Sagar, learned counsel appearing on behalf of the petitioners, has placed the entire case diary before this court. He has referred to a judgment of Hon’ble Supreme Court reported in 2000(3) PLJR(SC) (Shiv Kant Dwivedi Vs. State of Bihar). On the basis of this judgment, it was argued that the Hon’ble Supreme Court has already held that this power should be exercised sparingly and if the court is satisfied that the case is fit for interfering then, for the ends of justice, the court is liable to examine all the materials available on the record. 7. It was further submitted that in view of the materials on record it can be said that it was a case of civil nature and for such allegation a criminal proceeding may not be allowed to be invoked by either of the parties. On this point learned counsel for the petitioners has relied on a judgment of this Court reported in 2000(2) PLJR-243 (Ramashish Choudhary Vs. State of Bihar) and placed paragraph-9 of the judgment which is as follows: 6 “I also find that the allegations are of civil nature which could and should have been decided by a competent civil court. Though, generally the courts do not wish to interfere in the order of issuance of summons to the accused in a complaint case, but such orders have to be interfered with if it appears that the prosecution would only be abuse of the process of the criminal court.” 8. On the point of possession it was submitted that since in the present case the complainant has miserably failed to produce any document to show his possession over the land in question, no case either under the provisions of Indian Penal Code or SC/ST Act is applicable. In this connection he has referred to a judgment of this court reported in 2005(2) PLJR-76 (Chhattulal Sah Vs. State of Bihar). He has referred paragraph-10 of the judgment which is as follows: “That being the position the complaint looses its very basis and the allegations made therein appear to be groundless, false and incorrect. It, therefore, becomes evident that the complaint arose from non-existent facts and the cognizance order passed on its basis was quite misconceived, bad and illegal. Any further continuance of the proceeding resulting from the cognizance order would amount to an abuse of the process of the court.” 7 9. Sri Vidya Sagar has also relied upon a judgment of this Court reported in 2006(4) PLJR-24 (Janardan Rai Vs. State of Bihar). While referring paragraph-5 of the judgment, it was submitted that since none of the witnesses have supported the prosecution case, only on the basis of charge-sheet the learned Magistrate was not required to take cognizance. It was submitted that in the case diary nothing was collected to show the commission of any offence by the petitioners. 10. On the aforesaid grounds learned counsel for the petitioners has prayed for quashing of the order of cognizance and the entire proceeding in Harijan P.S. Case No.16 of 1999. 11. Learned counsel for the petitioners, while pressing the petition has heavily relied upon an order passed by this court while granting bail to all the petitioners vide order dated 11.10.1999 passed in Cr.Misc. No.22671 of 1999, which has been brought on record as annexure-4 to the petition. Learned counsel submits that while granting bail, this court has opined that no offence under the provisions of SC/ST Act.. was attracted. 12. Mrs. Indu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State, has forcefully opposed the prayer of the petitioners. It was submitted that there were sufficient materials to show commission of offence, as alleged by the informant in the first information report. While referring to para-4 of the case diary, it was submitted that the informant has reiterated the allegation which was made in the complaint/first information report. Learned counsel for the State 8 has also referred to para-7 of the case diary which shows that besides the informant, other witnesses have also corroborated the allegation. 13. This court has also perused the entire case diary. On perusal of the case diary it is not in dispute that a number of witnesses have stated that the complainant was dispossessed from the land in question. Some of the witnesses have also corroborated the allegation of assault and the informant himself has stated that, at the time of occurrence, one the accused persons opened fire. Of course, at the time of hearing a petition under section 482 of the Code of Criminal Procedure, it was not at all required to examine the materials in detail in the case diary, but on the insistence of learned counsel for the petitioners, as an exceptional case, this court has perused the case diary and the materials available on the record. On the basis of materials which have been brought in the case diary, the court is of the opinion that submissions advanced by the learned counsel for the petitioners regarding non- application of either SC/ST Act or Indian Penal Code, is not sustainable and the same is fit to be rejected. The court is satisfied that prima facie case was made out. So far as dispossession of the complainant from the land in question is concerned, number of witnesses have asserted that the complainant was in possession over the land in question since long and on the date of occurrence he was dispossessed. Section 3(v) of the SC/ST Act prescribes that dispossession of a person belongs to Scheduled Caste from the land attracts punishment for offence. It is proper to quote section 9 3(v) of the SC/ST Act which is as follows: Section 3. Punishment for offences of atrocities; (v) Wrongful dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land and premises or interferes with the enjoyment of his rights over any land, premises or water. 14. So far as Ramashish Choudhary’s case (supra) is concerned, this court is of the opinion that in the said case the court was satisfied that in a case of civil dispute a criminal jurisdiction of a court may not to be invoked but in the present case similar is not the allegation. On the contrary, this court is satisfied that order of cognizance was rightly passed by the court below. Other decisions which have been cited by the learned counsel for the petitioners, in view of the facts and circumstances of the present case as well as materials brought on the record, have got no relevance. Regarding order passed by this Court while granting bail to the petitioners I am of the opinion that any observation made in a bail order has got no bearing at the time of cognizance or at any subsequent stage of a criminal trial. 15. In view of the aforesaid facts and circumstances of the present case, this court is satisfied that while passing the order of cognizance, the learned Magistrate has committed no error. Accordingly, I do not find any merit in the present case or any ground for exercising inherent jurisdiction in favour of the petitioners and, as such, the petition stands rejected. 16. In view of rejection of this petition, interim order 10 Patna High Court The 30th July, 2010 Md.S./NAFR of stay dated 11.2.2000 stands automatically vacated. 17. Keeping in view the fact that the matter remained pending before this court for a long period, it is desirable to direct the concerned court to proceed with the case expeditiously so that the case may come to a logical end without any delay. It is directed to conclude the entire proceeding within a period of nine months from the date of receipt/production of a copy of this order. (Rakesh Kumar,J.)