Allowed

Harihar Prasad Alias Harihar Prasad Khatik And Ors. v. The State Of Jharkhand And Anr.

Jharkhand HC4 Oct 2023Cr.M.P./1105/2017

Case brief

AI extract

What is this about?

The High Court was approached to quash criminal proceedings filed against three petitioners, who are advocates. The court found the case to be a retaliatory counterblast to a previous complaint that had been quashed. Relying on settled principles regarding abuse of process and inherent powers under Section 482 Cr.P.C., the court quashed the proceedings.

What did the court decide?

The entire criminal proceedings, including the order taking cognizance dated 15.09.2015 for offences under Sections 385, 504, and 34 IPC, are quashed.

Harihar Prasad Alias Harihar Prasad Khatik And Ors. Vs… — Quashing and FIR | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 1105 of 2017

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Harihar Prasad

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@ Harihar Prasad Khatik

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Prayag Mahato

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Radhey Shyam Goswami @ Radhe Shyam Goswami ..... … Petitioners Versus

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The State of Jharkhand

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Madhusudan Chakraborty ..... … Opposite Parties

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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-----For the Petitioners : Mr. Sumeet Gadodia, Advocate. : Mr. Pratiush Lala, Advocate. For the State : Mr. V.S. Sahay, A.P.P. For the O.P. No. 2 : Mr. A.K. Kashyap, Sr. Advocate. : Mr. Ramesh Kumar, Advocate.

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04/ 04.10.2023 Heard Mr. Sumeet Gadodia, learned counsel appearing for the petitioners, Mr. V.S. Sahay, learned A.P.P. for the State and Mr. A.K. Kashyap, learned senior counsel appearing for the O.P. No. 2.

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This petition has been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 15.09.2015, by which, cognizance for the offence under Sections 385, 504, 34 of the Indian Penal Code has been taken against the petitioners, in connection with C.P. Case No. 930 of 2015, pending in the court of learned Judicial Magistrate, 1^st Class, Dhanbad.

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The complaint case was lodged by the complainant alleging therein that on 29.03.2015 the complainant along with Kansari Mandal, Devi Sharan Sinha and Braj Kishore were in discussion of urgent matter of Bar Association at his house in Gobindpur. At about 12:00 PM all accused person namely, Radhe Shyam Goswami, Prayag Mahato, Harihar Prasad along with some hired persons came in a Maruti car bearing No. JH10N-7532 and forcibly entered into the premises and surrounded the chair persons and at the knock of deadly weapon the accused, Radhe Shyam Goswami and Prayag Mahato demanded Rs 5, 00,000/-only from them, putting under fear of death and said that this was the only way to get rid of the present attack on the present committee of the District Bar Association and to get the C.P. Case No. 42/2015 withdrawn from the court and also to save their tenure from re-election drive. They also demanded free allotment of

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chambers to them. On alarm people gathered there and then the accused persons left the place by giving threatening to come again.

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Mr. Gadodia, learned counsel appearing for the petitioners submits that the petitioners are the practicing advocates of Dhanbad Bar Association and they are also the active members of the said Bar. He submits that the petitioner No. 1 has filed a complaint against O.P. No. 2 (complainant), wherein the petitioner Nos. 2 and 3 are the witnesses of that case, being C.P. Case No. 42 of 2015 on 05.01.2015 for the alleged offences under Sections 420, 406, 409, 114, 468, 477-A, 469, 120-B and 34 of the Indian Penal Code. He further submits that in the said case, cognizance was taken by the learned court by order dated 16.06.2015. He further submits that the complaint case No. 42 of 2015 was filed by the petitioner No. 1, which has been supported by the petitioner Nos. 2 and 3 as the witnesses in the said case. He further submits that the present case is the counter blast of the case filed by the petitioner No. 1. He further submits that only to harass and humiliate the petitioners, the present case has been filed. He further submits that so far as the complaint case No. 42 of 2015 is concerned, that has already been quashed by a co-ordinate Bench of this Court by judgment dated 06.02.2019 in Cr.M.P. No. 1311 of 2015. He also submits that the case was sent under Section 156(3) Cr.P.C. for registration without applying the judicial mind. He draws the attention of the court to Annexure-4 and submits that the report was called by the learned court from the police about any complaint made earlier pursuant to that page53 of the brief, the Officer-in-Charge of Govindpur Police Station informed that no such dispute was ever brought before him. He submits that the O.P. No. 2 has maliciously filed the case against the petitioners and the trial has also proceeded before the learned court. On these grounds, learned counsel appearing for the petitioners submits that the entire criminal proceeding may kindly be quashed, as the case has been filed in retaliation of the previous one.

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On the other hand, Mr. Kashyap, learned senior counsel appearing for the O.P. No. 2 submits that the said case, which was quashed by a Co-ordinate Bench of this Court was challenged before the Hon’ble Supreme Court in Special Leave to Appeal (Crl.) No. 3642

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of 2019, wherein the Hon’ble Supreme Court directed the Bar Council of Jharkhand to complete the inquiry and place the report before the Hon’ble Supreme Court. He further submits that the trial has already proceeded and at this stage, this court may not interfere in the matter. He further submits that there is no prayer in the case of sending the matter under Section 156(3) Cr.P.C. and the prayer is made for taking cognizance against the petitioners. In view of that, he submits that the case of Priyanka Srivastava & Anr. Versus State of U.P. & Ors. , reported in (2015) 6 SCC 287 is not attracted in the present case. On these grounds, learned senior counsel appearing for the O.P. No. 2 submits that this petition may kindly be dismissed.

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Mr. Sahay, learned A.P.P. appearing for the State submits that the case is already proceeding before the learned court and at this stage, this court may not interfere in the matter. 7. In view of the above submissions of the parties, it is an admitted fact that earlier the case was registered, being Complaint Case No. 42 of 2015 by the petitioner No. 1 against the complainant, wherein the petitioner Nos. 2 and 3 are the witness to the said complaint. Further looking into the complaint case, it appears that the date of occurrence is said to be 29.03.2014. It is disclosed in the column of the explanation of delay itself that it was informed to the Govindpur P.S. and when the case was not registered and ultimately the police refused for the same on 05.04.2015 and that’s why the case was lodged on 07.04.2015. Further the learned court by order dated 22.08.2015 called the report from the police and at page-53 of the brief, the Officer-in-Charge of Govindpur P.S. informed the court that the said dispute was not brought to the knowledge of the said police station, which clearly suggests that only to avoid the point of delay, the said averments have been made in the complaint case, which is not supported by the police, which came on inquiry by the learned court, which clearly suggests that this case has been filed as afterthought of complaint case No. 42 of 2015.

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It is well settled that the High Court under Section 482 Cr.P.C, at any stage, can quash the entire criminal proceedings, if the case is made out. This aspect of the matter has been recently considered by the Hon'ble Supreme Court in Abhishek v. State of Madhya

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Pradesh ; (2023 SCC OnLine SC 1083). Paragraphs 11 and 12 of the said judgment are quoted hereinbelow:-

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“11.This being the factual backdrop, we may note at the very outset that the contention that the appellants' quash petition against the FIR was liable to be dismissed, in any event, as the chargesheet in relation thereto was submitted before the Court and taken on file, needs mention only to be rejected. It is well settled that the High Court would continue to have the power to entertain and act upon a petition filed under Section 482 Cr. P.C. to quash the FIR even when a chargesheet is filed by the police during the pendency of such petition [See Joseph Salvaraj A. v. State of Gujarat ((2011) 7 SCC 59)]. This principle was reiterated in Anand Kumar Mohatta v. State (NCT of Delhi), Department of Home [(2019) 11 SCC 706]. This issue, therefore, needs no further elucidation on our part.

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12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC 568], this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr.P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the

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allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapurv. State of Punjab (AIR 1960 SC 866) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint.”

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It is well settled that even if the case is proceeded and the court comes to the conclusion that to allow to continue the case will amount to an abuse of the process of the court, at any stage, the power under Section 482 Cr.P.C. can be exercised by the court, as has been held by the Hon’ble Supreme Court in the case of Mahmood Ali & others v. State of U.P. & others in Criminal Appeal No.2341 of 2023 [arising out of S.L.P. (Criminal) No.12459 of 2022] vide judgment dated 08.08.2023. Paragraphs-12 and 15 of the said judgment is quoted hereinbelow:

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“12. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR / complaint alone for the purpose of

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ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.”

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It further appears that the learneds are fighting amongst themselves and it is a case of retaliation of Complaint Case No. 42 of 2015, which has already been quashed by a co-ordinate Bench of this court by judgment dated 06.02.2019 in Cr.M.P. No. 1311 of 2015. To put a criminal case under motion, by way of adducing certain evidence, is a serious thing, as has been deprecated by the Hon’ble Supreme Court in the case of Pepsi Food Limited and Another- versus- Special

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Judicial Magistrate & Others , reported in (1998) (5) SCC 749, wherein the Hon’ble Supreme Court in para-28 has observed as follows:-

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“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the

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nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any f the accused.”

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In view of the above facts, reasons and analysis, the entire criminal proceedings including the order taking cognizance dated 15.09.2015, by which, cognizance for the offence under Sections 385, 504, 34 of the Indian Penal Code has been taken against the petitioners, in connection with C.P. Case No. 930 of 2015, pending in the court of learned Judicial Magistrate, 1^st Class, Dhanbad, are hereby, quashed. 12. This petition is allowed and disposed of. Pending I.A., if any, stands disposed of.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

Harihar Prasad Alias Harihar Prasad Khatik And Ors. v. The State Of Jharkhand And Anr.

Case brief

What is this about?

What did the court decide?

Harihar Prasad Alias Harihar Prasad Khatik And Ors. v. The State Of Jharkhand And Anr.

Case brief

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What did the court decide?

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